May 19, 2020
Authored by: William Cole and Andrew Rodman
Despite the ongoing COVID-19 pandemic, companies continue to access the capital markets. In fact, liquidity concerns have put even greater emphasis on securities offerings for some companies. But there can be no question that COVID-19 has affected capital market transactions and companies should be mindful of the new environment.
Companies should consider a variety of offering issues that have been affected by the ongoing health crisis. These include:
Access to the market. Companies should consult with financial advisors as to the feasibility of offerings during this turbulent time. Companies may need to be much more flexible in timing and pricing their offerings.
Disclosure. As always, companies must evaluate the sufficiency of their disclosures. The difference now is that there may be a higher risk than usual as to whether all material nonpublic information has been disclosed. The SEC staff has encouraged disclosure to be as timely, accurate and as robust as practicable under the circumstances created by the COVID-19 pandemic. The Chairman of the SEC and the Director of the Division of Corporation Finance have pressed publicly for these robust disclosures to include management’s expectations about the effects of the pandemic going forward as well as the effects thus far. They suggested that detailed discussions of current liquidity positions and expected financial resource needs, as well as company actions to protect worker health and well-being and customer safety, could all be material to investors and encouraged disclosure. As we have previously discussed, companies need to give special