COVID-19

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The Staff of the various Securities Exchange Commission (SEC) divisions, including the Division of Corporation Finance, issued an announcement on March 24, 2020, which provides some flexibility to registrants seeking to satisfy the record retention requirement in Rule 302(b) of Regulation S-T that the registrant retain the manually signed documents.

Rule 302(b) of Regulation S-T requires that each signatory to documents electronically filed with the SEC “manually sign a signature page or other document authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing.”  Such documents must be executed before or at the time the electronic filing is made.  Further, electronic filers must retain such documents for a period of five years and furnish copies to the SEC or its staff upon request.

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Eric KnoxRecently, I provided guidance for an article in Agenda about best practices for conducting virtual board meetings. Some best practices mentioned in the article involve facilitating discussion, completing minutes in a timely manner, and protecting the privacy of the meeting’s discussion.

I’ve advised, “If you’re talking about something that relates to finances, your financial experts are the ones you might want to direct discussion to after you finish the introduction so questions are flowing to people with expertise first. Then, other directors can interject with their questions or thoughts.”

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In a previous blog post, we discussed the availability of virtual shareholder meetings (i.e., “virtual-only” and “hybrid” meetings) as a potential alternative to the traditional in-person meeting during the 2020 proxy season in light of the public health and safety crisis posed by the novel coronavirus (COVID-19) pandemic (we also discussed virtual annual meeting guidance provided by the SEC in a subsequent blog post). In response to COVID-19, states such as Connecticut, Georgia, New Jersey and New York have taken steps to remove barriers to virtual annual meetings under existing state law. Continue reading to learn more about steps these states are taking.
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The ongoing fallout from the pandemic associated with the novel coronavirus (COVID-19) continues to challenge companies, boards and management teams across all aspects of their business.  In trying times like these, senior management team members are meeting regularly to discuss the impact of the virus on their business operations and formulate contingency plans that must be put into place to manage through this difficult environment.

Sometimes, management teams can be so focused on managing through a crisis that they fail to implement the protocols they are adopting for their broader associate base amongst themselves.  For instance, many companies have recently implemented social distancing protocols among their employees including, remote working arrangements, limiting large meetings or non-essential face-to-face meetings.  Meanwhile, groups of senior managers are meeting in-person in close contact with one another.

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The novel coronavirus (COVID-19) has already proven to have profound social, political and economic effects on the world, impacting nearly every continent, community and business sector.  With the growing uncertainty about the extent to which such effects will be felt in the future, many companies have begun to evaluate their pending acquisition agreements and financing arrangements to consider the scope of terms such as “Material Adverse Change” and “Material Adverse Effect” (MAC), and the provisions using such terms, as they relate to COVID-19.

While merger and acquisition (M&A) agreements and debt financing arrangements typically include MAC provisions, these provisions vary widely and should be read carefully.  This article briefly describes some of the things companies should consider in evaluating COVID-19 in the context of MAC provisions in both M&A arrangements and debt financing transactions.

MAC Provisions in M&A Transactions

One area of law where participants may be taking a fresh look at contractual provisions with the effects of COVID-19 in mind is in M&A contracts.  In the vast majority of M&A agreements, whether for public or private targets, the buyer will have a “walk right” between signing and closing if the target business suffers a MAC.  Regardless of the terminology used and the particulars of the contractual definition, the intent of these provisions is generally understood to allow a buyer that has signed an M&A contract not to have to close if some negative event or circumstance has affected the target business and it is so severe that the buyer’s benefit of the bargain is essentially lost, and the buyer, therefore, has the right to terminate the agreement without closing the acquisition.

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In a previous blog post, we discussed the availability of virtual shareholder meetings (i.e., “virtual-only” and “hybrid” meetings) as a potential alternative to the traditional in-person meeting during the 2020 proxy season in light of the emerging public health and safety crisis posed by the coronavirus pandemic (COVID-19). The Staff of the U.S. Securities and Exchange Commission’s Division of Corporation Finance and Division of Investment Management subsequently issued guidance for conducting virtual annual meetings under these unprecedented circumstances.

Post-Proxy Filing

The Staff confirmed that if a company has already mailed and filed its proxy materials, the company can notify shareholders of a change in the date, time or location of the annual meeting without amending its definitive proxy materials or mailing additional soliciting materials if the company issues a press release announcing the change, files the announcement as definitive additional soliciting material on EDGAR, and takes all reasonable steps necessary to inform other interested parties in the proxy solicitation process (e.g., any proxy service providers and applicable national securities exchanges) of the change. These actions should be taken promptly after the decision to hold a virtual meeting is made and, in any case, sufficiently in advance of the annual meeting. Therefore, companies that have already filed and mailed their definitive proxy materials would not need to mail additional soliciting materials (including new proxy cards) solely to switch to a “virtual” or “hybrid” meeting if they follow the steps described above for announcing a change in the meeting date, time, or location.

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Across the globe, the coronavirus pandemic (COVID-19) is causing governments, companies, associations and colleges and universities to take unprecedented steps to address the spread and transmission of COVID-19. These steps include imposing restrictions on travel and public life; closing physical offices or campuses; canceling conferences, meetings and other scheduled group activities; restricting the size of gatherings; and encouraging or requiring employees and students to telecommute.

With increasing COVID-19 concerns in the United States and proxy season underway, public companies, including those that have already mailed proxy materials, may need to consider alternatives to conducting in-person shareholder meetings in light of the emerging public health crisis posed by the COVID-19 pandemic. Specifically, companies should assess whether or not a virtual meeting format is a viable alternative to the customary in-person meeting. Virtual meetings are generally divided into the following two categories:

  1. Virtual-only meetings conducted solely using remote communication.
  2. Hybrid meetings conducted in-person with concurrent participation by remote communication.

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