SEC Expands Electronic Filing Requirements | Kelley Drye & Warren LLP

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[co-author: Gwendolyn Ellis, summer associate]

Insight

The Securities and Exchange Commission (SEC) announced on June 3, 2022 that it had adopted amendments requiring a number of additional forms to be filed or submitted electronically. These final rules are part of the SEC’s ongoing efforts to modernize its filing system and records management, and will take effect on Monday, July 11, 2022.

Affected documents can currently be submitted on paper or electronically prior to approval of changes. The new rules require electronic filing and filers will need to use the SEC’s Electronic Data Gathering, Analysis and Retrieval (EDGAR) filer manager. Submissions via other methods will no longer be accepted.

The SEC intends to use the EDGAR database to increase public access to corporate documents, improve investment efficiency and transparency of company actions and security holders. The fact sheet regarding the new changes can be found here and the SEC statement on the changes can be found here.
Documents concerned

  • Documents under ST Rule 101(b) that could previously be submitted electronically:
    • Form 6-K (filed by foreign private issuers); Form 11-K (annual reports regarding employee stock purchase, savings, and similar plans);
    • Form 144 (filed by a security holder under Rule 144 to notify the SEC of an intention to sell restricted securities);
    • “Glossy” annual reports (corporate reports to shareholders that include information about the company’s activities in a more readable and investor-friendly format than annual reports on Form 10-K);
    • Notice of Exempt Solicitations (filing of proxy solicitations that are exempt from the normal solicitation rules);
    • Notices of Exempt Preliminary Roll-Up Communications (filing made by security holders wishing to be exempted from roll-up operations); and
    • Filings by Multilateral Development Banks (Development Bank Reports on Allocation of Primary Obligations);
  • Certifications under Section 12(d) of the Exchange Act and Rule 12d1-3 of the Exchange Act; and
  • Some foreign language documents.

Other Changes

The amendments further require that data reporting in connection with Form 11-K be filed in the Inline XBRL data format, which would allow it to be machine readable. This is the latest requirement in the SEC’s phased implementation of the Inline XBRL format, which all filers must use.

The SEC is also making minor updates to Forms F-10, FX, and CB to remove obsolete references to physical filing procedures and formats that are no longer in use.

Impact

For many filers already using electronic formats for these forms, the switch to EDGAR filing should not be a significant change. EDGAR requires specific formats and not all forms can be uploaded in the same format, but it does not require serious changes to the way forms are filled out and structured. For filers who used paper, the SEC allowed more time to adjust to the new formatting. In order to use EDGAR, filers will need access codes to submit their documents electronically. These codes must be requested from the SEC and may take up to two business days to receive. More information about using EDGAR and preparing documents in the proper format can be found on the SEC’s website here.

Other forms not subject to these rule changes may be voluntarily submitted through EDGAR. As the SEC is likely to continue its efforts to modernize its filing systems and expand the use of EDGAR, filers should consider transitioning to using the database for all forms that can be submitted through electronic.

Companies should be careful to submit glossy annual reports in the proper format, as the rules require formatting to encompass the same presentation of the actual report, but EDGAR will reject PDF submissions that contain hyperlinks or other code that may be more prevalent. in investor reports. . Additionally, previous guidelines that glossy annual reports could be posted on the company’s website rather than filed are superseded by the new rules and filing will be required, although companies can still post the reports if they want it.

Effective Dates

Filers will have six months after the effective date of the amendments to switch to electronic filing if they submit their documents on paper. There is less wiggle room for filers who have previously filed electronically to use the EDGAR format, who are expected to submit via EDGAR as soon as the rules come into effect.

Glossy annual reports must be submitted electronically six months after the effective date of the amendments. Updates to Form 144 will be published separately in an updated version of the EDGAR Handbook, which is expected to be published in September 2022, and submissions must comply with this formatting six months after the rule is published in the Federal Registrar. . The SEC is also considering making Form 144 fillable in the near future.

For data requirements related to Form 11-K, filers will have three years from the effective date of the amendments to comply with Inline XBRL formatting.

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