Exemptive Relief

The Securities and Exchange Commission (SEC) has issued an order (Order) providing temporary exemptive relief to public companies that are unable to meet filing deadlines due to circumstances related to novel coronavirus (COVID-19). Companies that satisfy the conditions in the Order will have an additional 45 days to file certain disclosure reports, including quarterly reports on Form 10-Q, annual reports on Form 10-K, current reports on Form 8-K, and proxy statements. The time period for the relief is from March 1, 2020 to April 30, 2020.

Conditions

The exemptive relief is subject to a number of conditions outlined in the Order. Among other things, a registrant must furnish to the SEC a Form 8-K or Form 6-K, as applicable, by the later of March 16 or the original filing deadline stating that it is relying on the Order and describing the reasons why it could not file the report, schedule, or form on a timely basis. Additional content of the Form 8-K or Form 6-K is prescribed in the Order. The subject report, schedule or form must be filed no later than 45 days after the original due date.

Proxy and Information Statements

The Order provides an additional exemption from the requirements to furnish proxy statements, annual reports, other soliciting materials and information statements when mail delivery is not possible because of circumstances related to COVID-19. Specific conditions are described in the Order.

Impact on Form Eligibility and Rule 144 Transactions

The SEC’s press release announcing the Order clarified that a company relying on the temporary relief will be considered current in its Exchange Act filing requirements for purposes of Form S‑3, Form S-8 and the current public information requirements of Rule 144(c) if the company’s filings were current as of March 1, 2020 and the subject report is filed within 45 days of its original filing deadline.

Disclosure Considerations for All Companies

The SEC’s press release announcing the Order reminded companies to consider their disclosure obligations related to the impact of the coronavirus on their businesses and operations. For example, where the coronavirus presents a risk that would be material to a company’s investors, the press release suggested that companies should refrain from engaging in securities transactions with the public, and take steps to ensure directors and officers likewise refrain from initiating such transactions, until investors have been appropriately informed of the risk. Companies are also reminded to avoid selective disclosure of material information about the impact of the coronavirus.

Guidance from the Division of Investment Management

In February 2019, the Division of Investment Management (Division) issued a no-action letter to the Independent Directors Council (IDC Letter), which provided that the Staff would not recommend enforcement action if boards of registered investment companies and business development companies (funds) did not adhere to certain in-person voting requirements under the Investment Company Act of 1940, as amended, in the event of unforeseen or emergency circumstances affecting some or all of a fund’s directors. Since the proliferation of COVID-19, the Division has broadened the no-action position in the IDC Letter to cover all approvals and renewals (including material changes) of contracts, plans or arrangements under Section 15(c) and Rules 12b-1 and 15a‑4(b)(2) (i.e., advisory agreements, principal underwriting agreements, Rule 12b-1 plans and interim advisory agreements), as well as the selection of a fund’s independent public accountant pursuant to Section 32(a), where such accountant is not the same accountant as selected in the immediately preceding year.

The broadened relief now covers approvals of new contracts, including those arising as a result of a change of control event (which, by and large, were explicitly excluded from the IDC Letter). As noted in our prior Client Alert, the IDC Letter does not address the validity of contracts entered into in reliance on the Staff’s relief. The Division’s expanded position applies to board meetings held between March 4, 2020 and June 15, 2020. As a reminder, the IDC Letter does not require a fund board to take current action to adopt emergency-related policies in order to take advantage of the relief provided.

Photo of Peter Castellon Peter Castellon

Peter represents issuers, underwriters and selling shareholders in connection with offerings of securities, including IPOs, follow-on and secondary offerings, block trades, rights offerings and offerings of convertible and exchangeable bonds.

Peter is active in bar association activities and has served as an officer…

Peter represents issuers, underwriters and selling shareholders in connection with offerings of securities, including IPOs, follow-on and secondary offerings, block trades, rights offerings and offerings of convertible and exchangeable bonds.

Peter is active in bar association activities and has served as an officer of several committees, including the IBA Capital Markets Forum, the International Securities Matters Subcommittee of the ABA Committee on the Federal Regulation of Securities and the ABA International Securities & Capital Markets Committee.

Peter has written several articles on securities law topics, including the following:

  • US Private Placements: When Rule 144A is unavailable, PLC, July, 2015.
  • SAS 72 letters: Seeking comfort, PLC, May, 2013.

  • Another way in, IFLR, March, 2012.

Before joining Proskauer, Peter was Deputy General Counsel for Citi and advised the Equity Capital Markets Division and Investment Banking Division. While at Citi, Peter worked on most of Citi’s ECM transactions in Europe, the Middle East and Africa.

Photo of Michael Choate Michael Choate

Michael Choate is a partner in the Corporate Department and is a member of the Capital Markets Group and both Real Estate Capital Markets and Private Equity Real Estate Groups. Michael’s practice is broad and includes a focus on transactional matters involving both…

Michael Choate is a partner in the Corporate Department and is a member of the Capital Markets Group and both Real Estate Capital Markets and Private Equity Real Estate Groups. Michael’s practice is broad and includes a focus on transactional matters involving both public and private offerings as well as private equity and joint venture transactions along with mergers and acquisitions, corporate governance issues and federal securities compliance matters.

Photo of Stuart H. Coleman Stuart H. Coleman

Stuart Coleman has counseled registered funds and their independent board members and market-leading investment advisers for more than 35 years, through cycles of industry expansion and innovation and in times of economic and regulatory crisis. His clients include funds and/or boards in more…

Stuart Coleman has counseled registered funds and their independent board members and market-leading investment advisers for more than 35 years, through cycles of industry expansion and innovation and in times of economic and regulatory crisis. His clients include funds and/or boards in more than 30 well-known complexes (including those with registered hedge and private equity funds, ETFs and BDCs), with assets of nearly 10% of all the money invested in investment companies. Stuart also has represented board litigation committees and has served as an expert in a significant matter before the SEC and in private litigation.

A well-known individual in the industry, Stuart has chaired the New York City Bar Association Committee on Investment Management Regulation and has served on the ABA’s Task Force on the Fund Director’s Guidebook. In addition, he has spoken at numerous prominent industry conferences and before industry groups.

He is passionate about the performing arts in New York City. He and his wife serve on the boards of a number of dance companies and performing arts venues.

Before joining Proskauer, Stuart was the co-managing partner of a national law firm for 12 years.

Photo of Daniel Forman Daniel Forman

Daniel Forman is a partner in Proskauer’s Capital Markets Group. His practice focuses on securities offerings and related transactions, and he regularly represents issuers, sponsors, investors and underwriters in securities transactions including initial public offerings, secondary equity offerings, debt offerings, convertible note offerings…

Daniel Forman is a partner in Proskauer’s Capital Markets Group. His practice focuses on securities offerings and related transactions, and he regularly represents issuers, sponsors, investors and underwriters in securities transactions including initial public offerings, secondary equity offerings, debt offerings, convertible note offerings, tender offers and consent solicitations, debt restructurings and private placements. He also counsels public companies on general corporate representation, SEC compliance, disclosure matters, mergers and acquisitions and complex securities law issues. Daniel has significant experience advising on transactions for companies in the life sciences, technology, consumer/retail, industrial, financial institutions and real estate sectors.

Photo of James Gerkis James Gerkis

James P. Gerkis is a partner in the Corporate Department with extensive experience in sophisticated U.S. and global corporate transactions, including mergers & acquisitions, capital markets, venture capital, media, real estate and restructuring transactions.  He has represented a wide variety of financial institutions…

James P. Gerkis is a partner in the Corporate Department with extensive experience in sophisticated U.S. and global corporate transactions, including mergers & acquisitions, capital markets, venture capital, media, real estate and restructuring transactions.  He has represented a wide variety of financial institutions, Fortune 500 companies and growth companies.  James currently focuses on matters for clients in the technology, media and real estate industries.

Among other clients, James has represented iHeartMedia, Preferred Apartment Communities, Financial Guaranty Insurance Company, Oxford Analytica, Olshan Properties, the Creditors Committee in the chapter 11 cases of Westinghouse Electric Company, Lightstone Group, Neuberger Berman and Suburban Propane Partners.

James received his law degree from Columbia University School of Law in 1983, where he was a Harlan Fiske Stone Scholar and a Teaching Fellow.  He did his undergraduate work at Columbia College, where (having been admitted without finishing high school) he received a BA degree in Political Science in 1980.

James has made presentations at numerous industry and bar association conferences and has authored many articles on different legal topics.

James is the President of the Columbia University Club of New York, is active in other Columbia University alumni affairs and has been chosen to receive a 2018 Columbia University Alumni Medal.

James is on the Board of Directors of HABA-Hellenic American Association for Professionals in Finance.  James received the 2017 Attorney of the Year Award from The Hellenic Lawyers Association.

Photo of Steven L. Lichtenfeld Steven L. Lichtenfeld

Steven L. Lichtenfeld is co-head of our market-leading Real Estate Capital Markets and Real Estate Finance Groups and a founding member of our Private Equity Real Estate Group. He regularly advises real estate funds, REITs, sovereign wealth funds, institutional lenders, specialty lenders, hedge…

Steven L. Lichtenfeld is co-head of our market-leading Real Estate Capital Markets and Real Estate Finance Groups and a founding member of our Private Equity Real Estate Group. He regularly advises real estate funds, REITs, sovereign wealth funds, institutional lenders, specialty lenders, hedge funds, and pension advisors regarding public offerings and private placements of real estate-related debt and equity securities, real estate-related mergers and acquisitions, real estate preferred equity investments and joint ventures, real estate-related senior and mezzanine financings and other corporate, partnership and limited liability company matters.

Steven has been widely recognized as a driving force in the real estate capital markets and finance space during his more than thirty-five year career. He has garnered several prestigious accolades in this area, including receiving a coveted ranking from Chambers USA, which has described him as “a brilliant real estate attorney with experience in many asset classes.” Chambers has also described Steven as “highly analytical and highly strategic” and “encyclopedic in terms of his knowledge” in handling a broad spectrum of public and private debt offerings, M&A, joint venture and other corporate real estate matters. Steven is also recommended for Real Estate and REITs by Legal 500 United States and is consistently recognized as a leading real estate lawyer in Best Lawyers in America and Super Lawyers.

Photo of Janna Manes Janna Manes

Janna Manes has worked with registered investment companies and their boards of directors (primarily mutual funds and ETFs) for all of her more than 25 years of practice. In addition to private practice, Janna served as General Counsel of a major asset management…

Janna Manes has worked with registered investment companies and their boards of directors (primarily mutual funds and ETFs) for all of her more than 25 years of practice. In addition to private practice, Janna served as General Counsel of a major asset management firm. As a result, her skill set covers the full range of the Investment Company Act practice. Her background and diverse experiences with a varied client base enable her to provide practical, timely advice appropriate to a client’s specific circumstances.

Janna advises many of her clients on a day-to-day basis on legal requirements and industry practices regarding compliance matters, SEC filings, board governance matters and fund formations and reorganizations.  She also has extensive experience negotiating both routine and complex service provider agreements, structuring and reviewing compliance programs, and assisting clients in managing long term projects to comply with new regulations or implement fund management or board initiatives.

Photo of Matthew O'Loughlin Matthew O'Loughlin

Matthew O’Loughlin is a partner in the Corporate Department and is a member of the Mergers & Acquisitions Group. Matthew counsels clients on corporate, strategic and transactional matters, representing public and private companies, entrepreneurs, high-net worth families, investors, private equity groups and investment…

Matthew O’Loughlin is a partner in the Corporate Department and is a member of the Mergers & Acquisitions Group. Matthew counsels clients on corporate, strategic and transactional matters, representing public and private companies, entrepreneurs, high-net worth families, investors, private equity groups and investment banks. He acts as outside corporate counsel, advises boards of directors and assists companies with their day-to-day legal needs. This includes public and private securities offerings, mergers and acquisitions, joint ventures, and other strategic and complex transactions and liquidity events. He also advises clients on SEC reporting matters and corporate governance.

Matthew’s clients are principally in the life science/healthcare, food and beverage, health and wellness, consumer products, technology and entertainment industries. He also has particular experience in cross border transactions.

Photo of Ben Orlanski Ben Orlanski

Ben Orlanski is a partner in the Corporate Department and is a member of the Mergers & Acquisitions Group and the Capital Markets Group. Ben focuses on major corporate transactions and strategically solving critical business challenges. He has significant experience in securities and…

Ben Orlanski is a partner in the Corporate Department and is a member of the Mergers & Acquisitions Group and the Capital Markets Group. Ben focuses on major corporate transactions and strategically solving critical business challenges. He has significant experience in securities and public company representation; mergers and acquisitions; capital markets transactions; special committee, board of directors and general corporate representation; and corporate governance. His experience covers a wide range of industry sectors, including software-as-a-service, REITs, digital media, specialty manufacturing and consumer products.

Capital Formation and Securities

Ben has significant experience in managing, structuring and executing sophisticated securities and capital raising transactions. His approach reflects understanding of market operation, well-designed capital structure and the practical realities of the capital raising process. He represents public companies and investors in public offerings, registered direct transactions, self-tenders, warrant exchanges/flush transactions, recapitalizations, defensive strategies and secondary offerings. He also advises clients on corporate finance transactions for private businesses, ranging from venture capital and private placements to public offerings and debt restructurings.

Mergers and Acquisitions

Ben has completed scores of transactions representing buyers, sellers, investment bankers and financiers through all phases of the M&A process. He is actively involved in planning, structuring, negotiating and documenting strategic merger and acquisition transactions as well as dispositions of sophisticated enterprises.

General Counsel, Public Reporting and Strategic Advice

Ben acts as outside general counsel for numerous public and private companies, applying a business-like approach to produce practical legal solutions to both day-to-day and exceptional legal challenges. In representing his public clients, Ben has successfully guided the public reporting process for clients facing accounting and SEC challenges, proxy contests, cash flow issues, litigation, shareholder activism and strategic alternatives. He frequently advises on issues related to compliance with insider trading laws and major compliance challenges. He also represents boards of directors and special committees of public companies in special situations, including “interested” transactions, investigations, executive succession planning and sensitive corporate governance issues.

Photo of Robert E. Plaze Robert E. Plaze

Robert Plaze’s experience gives him a unique understanding of the SEC and the federal securities laws affecting our clients. Following nearly 30 years in the SEC’s Division of Investment Management, most recently as Deputy Director, Bob is a partner in Proskauer’s Registered Funds…

Robert Plaze’s experience gives him a unique understanding of the SEC and the federal securities laws affecting our clients. Following nearly 30 years in the SEC’s Division of Investment Management, most recently as Deputy Director, Bob is a partner in Proskauer’s Registered Funds Group.

At the SEC, Bob was responsible for policy development and management of the key regulatory initiatives affecting investment companies and investment advisers, including rules governing fund and adviser compliance programs, money market funds, fund corporate governance, personal trading, custody and brokerage practices, prohibitions on “pay to play” practices, and protection of investor privacy. After the passage of the Dodd-Frank Act, Bob was responsible for rulemaking requiring advisers to private funds to register with the SEC, providing new exemptions from registration and requiring reporting by certain exempt advisers.

Photo of Nicole Runyan Nicole Runyan

Nicole Runyan counsels registered funds and their independent board members, as well as investment advisers and sponsors, across a wide range of regulatory, transactional and compliance matters.

Nicole advises on the creation, registration and operation of new and existing products designed for institutional…

Nicole Runyan counsels registered funds and their independent board members, as well as investment advisers and sponsors, across a wide range of regulatory, transactional and compliance matters.

Nicole advises on the creation, registration and operation of new and existing products designed for institutional or retail investors. Most recently, she has counseled clients on the design and offering of alternative investment products and strategies, such as BDCs and private equity, requiring innovative legal analysis and a broad business understanding.

Additionally, she advises on the full range of issues facing funds, their boards and advisers. These include regulatory and compliance matters, trading and conflicts issues, disclosure matters, financing transactions, and extraordinary events such as restructurings and acquisitions.

Co-chair of the Women’s Investment Management Forum, a networking and educational organization for women in the investment management industry, Nicole is active in the industry and publishes articles on topics of current interest, including new SEC regulations.

Nicole serves on the Firm’s New York Hiring Committee and, before joining Proskauer, was the hiring partner for a New York-based national law firm.

Photo of David Stephens David Stephens

David Stephens is a partner and a member of the Registered Funds Group. David has particular expertise in matters arising under the Investment Company Act. David’s experience covers virtually all types of investment companies, including registered and unregistered, open-end and closed-end, ETF’s, and…

David Stephens is a partner and a member of the Registered Funds Group. David has particular expertise in matters arising under the Investment Company Act. David’s experience covers virtually all types of investment companies, including registered and unregistered, open-end and closed-end, ETF’s, and master-feeder funds, as well as funding vehicles for insurance products.

Photo of William J. Tuttle William J. Tuttle

William Tuttle is a partner in the Corporate Department and focuses his practice on capital markets and corporate matters. Will represents business development companies (BDCs), asset managers, issuers, closed-end funds and underwriters/investment banks. His experience includes facilitating public and private securities transactions for…

William Tuttle is a partner in the Corporate Department and focuses his practice on capital markets and corporate matters. Will represents business development companies (BDCs), asset managers, issuers, closed-end funds and underwriters/investment banks. His experience includes facilitating public and private securities transactions for investment banks and strategic mergers and acquisitions for companies. In addition, Will counsels investment advisers on structuring and forming new investment funds, with an emphasis on leveraged loan funds.

Photo of Frank Zarb Frank Zarb

Frank Zarb is a partner in the Corporate Department, where he concentrates his practice on regulatory matters under the U.S. federal securities laws, as well as on equity finance transactions regulated under those laws.

He counsels public and private companies, broker-dealers, hedge funds…

Frank Zarb is a partner in the Corporate Department, where he concentrates his practice on regulatory matters under the U.S. federal securities laws, as well as on equity finance transactions regulated under those laws.

He counsels public and private companies, broker-dealers, hedge funds, as well as other investors, on a wide range of transactional and securities regulatory compliance matters

Photo of Steven A. Fishman Steven A. Fishman

Steven A. Fishman, a senior counsel in the Corporate Department, concentrates his practice in real estate securities, real estate private equity investments and finance matters. Steve has extensive experience in connection with acquisitions and dispositions of public and private limited partnerships and limited…

Steven A. Fishman, a senior counsel in the Corporate Department, concentrates his practice in real estate securities, real estate private equity investments and finance matters. Steve has extensive experience in connection with acquisitions and dispositions of public and private limited partnerships and limited liability companies, the formation of real estate joint ventures and private equity funds, the sale of hotel companies, and debt and equity financings.

Steve also has broad experience representing public and private corporations in all aspects of their securities filings and commercial transactions.

Photo of Ian Jong Ian Jong

Ian Padilla Jong is a law clerk in the Corporate Department. He previously worked as a summer associate at Proskauer and as an intern at the East Bay Community Law Center’s Immigration Unit.

Ian earned his J.D. from UCLA School of Law, where…

Ian Padilla Jong is a law clerk in the Corporate Department. He previously worked as a summer associate at Proskauer and as an intern at the East Bay Community Law Center’s Immigration Unit.

Ian earned his J.D. from UCLA School of Law, where he served on the Executive Board of La Raza Law Student Association and competed for the school’s nationally ranked trial advocacy team.

Prior to law school, Ian competed as an NCAA athlete for UC Irvine’s Track & Field team. He also competed for Irvine’s top-ranked Mock Trial Team, where he was awarded Rookie of the Year and All-American distinctions.