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EDGAR Filer Information:
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| The Securities and Exchange Commission disclaims responsibility for any private publication or statement of any of its employees. This outline was prepared by members of the staff of the Divisions of Corporation Finance and Investment Management and does not necessarily represent the views of the Commission, the Commissioners, or other members of the staff. |
| This outline was prepared by employees of the Securities and Exchange Commission as an aid to those who are subject to mandated electronic filing. The outline is available to the public at large and may be reproduced without restriction or charge by any party at any time. |
In early 1993, the Commission began to mandate electronic filing through its Electronic Data Gathering, Analysis, and Retrieval system, EDGAR. This system is intended to benefit electronic filers, enhance the speed and efficiency of SEC processing, and make corporate and financial information available to investors, the financial community and others in a matter of minutes. Electronic dissemination generates more informed investor participation and more informed securities markets.
The Commission began developing an electronic disclosure system in 1983. By the fall of 1984, a pilot system was opened for volunteers filing with both the Division of Corporation Finance and the Division of Investment Management. On July 15, 1992, the operational EDGAR system was made available to those filers, still on a voluntary basis.
On February 23, 1993, the Commission issued four releases adopting rules, on an interim basis, that required filers to file electronically, by direct transmission, diskette, or magnetic tape, most documents processed by the Divisions of Corporation Finance and Investment Management. The releases also contained phase-in schedules to bring filers onto the EDGAR system, a process that began on April 26, 1993. See Securities Act Release No. 6977 [58 FR 14628] (explaining the EDGAR system generally and setting forth rules and procedures that apply to electronic submissions processed by the Division of Corporation Finance and in some cases, to those processed by the Division of Investment Management); Investment Company Act Release No. 19284 [58 FR 14848] (adopting rules specific to electronic submissions made by investment companies under the Investment Company Act of 1940 and institutional investment managers under Section 13(f) of the Exchange Act); Public Utility Holding Company Act Release No. 25746 [58 FR 14999] (adopting rules specific to electronic submissions made by public utility holding companies and their subsidiaries under the Public Utility Holding Company Act of 1935); and Securities Act Release No. 6980 [58 FR 15009] (relating to the payment of filing fees, by both paper and electronic filers, to the Commission's lockbox depository at Mellon Bank in Pittsburgh, Pennsylvania, under Rule 3a of the Rules Relating to Informal and Other Procedures).
After completing the phase-in of a statutorily mandated significant test group in December 1993, the Commission refrained from further phase-in of EDGAR filers while the staff evaluated EDGAR's performance during a six-month test period, which ran from January 1, 1994 to June 30, 1994. The evaluation resulted in a positive assessment of the EDGAR system, based on data gathered from within the Commission as well as from the filers and other members of the public. Consequently, the staff recommended that the Commission proceed with full implementation of mandated electronic filing.
On December 19, 1994, the Commission issued Securities Act Release No. 7122 [59 FR 67752], which made the EDGAR interim rules final and applicable to all domestic registrants and third parties filing with respect to those registrants. Phase-in recommenced on January 30, 1995 and proceeded as set forth in a revised phase-in schedule. The Commission also adopted minor amendments to the electronic filing rules to reflect the staff's experience with the rules since mandated filing began in 1993. These amendments were proposed in July 1994 in Securities Act Release No. 7074 [59 FR 36264] and are reflected in this outline; that release also contains a discussion of some common electronic filing errors, a summary of which is included below.
On April 24, 2000, the Commission issued Release Nos. 33-7855; 34-42712; 35-27172; 39-2384; IC-24400 [65 FR 24788] adopting amendments to existing rules and forms in connection with the next stage of modernization of the EDGAR system.
Beginning May 30, 2000, EDGAR will include the following new features:
The release removes the requirement for filers to submit Financial Data Schedules for filings due and submitted after January 1, 2001. It also removes diskettes as an available means of transmitting filings to the EDGAR system, effective July 10, 2000. All other rule changes are effective May 30, 2000. Selected rule changes are discussed below.
Filers who choose to submit HTML documents will now be able to submit documents in the EDGAR system that can appear in substantially the same graphic or image format as those prepared for delivery to investors.
Filers are required to submit graphics in HTML documents only in the limited instances when our rules require graphics. For example, if a filer submits its proxy statement in HTML format, then the performance graph must appear in the HTML proxy document. See Rule 304(e) of Regulation S-T.
Filers should not include non-public information in graphic files. The EDGAR system cannot determine whether a graphic files relates to a public or non-public document. The system will disseminate graphic files associated with all document types including cover letters and correspondence.
Filers who choose to use HTML will now be able to hyperlink to other documents within an EDGAR submission (e.g., to exhibits) or to previously filed documents (e.g., from a Form S-3 to a previously filed Form 10-K) if the linked documents are in the EDGAR database on our website (www.sec.gov). They continue to be able to hyperlink within a document, for example, between the table of contents and sections of a document.
Filers may not use hyperlinks as a substitute for providing information required in the filed document when incorporation by reference is not available. For example, a Form S-1 may contain a hyperlink to the filer's Form 10-K, but the filer still must provide all required business and financial information in the Form S-1.
If incorporation by reference is available, the filer must comply with all related requirements even if the filer chooses to use hyperlinks. For example, a Form S-3 may contain a hyperlink to the previously filed Exchange Act reports incorporated by reference, but the Form S-3 still must make the required statements about which documents are incorporated by reference.
The Commission amended Rule 105 of Regulation S-T to make it clear that linked material is not part of the official filing for determining compliance with reporting obligations, but that such information is subject to the civil liability and anti-fraud provisions of the federal securities laws whether or not the hyperlink is permitted by the Commission's rules.
Since June 1999, filers have been able to submit official documents in either ASCII or HTML format. Filers may also submit an unofficial copy in PDF format that is substantively equivalent to the ASCII or HTML submission. The PDF format allows submissions to look similar to printed materials distributed to investors. The PDF copy of a filing is disseminated to the public, but is not an official filing.
The Commission amended Rule 104 of Regulation S-T to provide that unofficial PDF copies in correspondence documents may differ from the contents of ASCII or HTML correspondence documents. This will allow filers to use PDF to submit redlined copies of official filings in EDGAR correspondence documents. Because these documents are correspondence, they will not be disseminated to the public.
The Commission awarded a three-year contract for the modernization of the EDGAR system to TRW, Inc. The contract was effective on July 1, 1998. The new system is expected to reduce costs and efforts of preparing and submitting electronic filings, as well as permit more attractive and readable documents.
On May 17, 1999, the Commission issued Release Nos. 33-7684; 34-41410; and IC-23843 [64 FR 27888] adopting new rules and amendments to existing rules and forms in connection with the first stage of EDGAR modernization.
On June 28, 1999, the Commission began accepting live filings submitted to EDGAR in HyperText Markup Language (HTML) as well as documents submitted in American Standard Code for Information Interchange (ASCII) format. Filers have the option of accompanying their required filings with unofficial copies in Portable Document Format (PDF).
The EDGAR system accepts HTML documents as official filings. The Commission is not now requiring the use of HTML. However, the Commission expects to require HTML for most filings in the future, so it encourages filers to use it and gain experience with this format if they do not have it already. If HTML is used, each EDGAR document may consist of no more than one HTML file. The Commission's filer technical support staff assists filers in submitting and correcting HTML documents.
The EDGAR system imposes certain limitations on HTML documents, as discussed below. These limitations are necessary due to technical issues that we must resolve before full implementation of the new HTML component of the EDGAR system.
Filers may not submit Form N-SAR, Form 13F, or Financial Data Schedules as HTML documents. These documents have standard formats and tagging designed for presentation in ASCII, and their current format facilitates their downloading and use in other computer applications. (See Rule 105 of Regulation S-T.)
In addition to permitting the use of HTML in filings, the Commission is permitting filers to submit a single unofficial PDF copy of each electronic document. (See Rule 104 of Regulation S-T.) Filers may not use PDF documents instead of HTML or ASCII documents to meet filing requirements. Unofficial PDF copies will be disseminated publicly. The unofficial PDF copy is optional, but if a filer submits an unofficial PDF copy of a document, that PDF document must be the same as the official document (the HTML or ASCII document of which it is a copy) in all respects except for the formatting and inclusion of graphics (instead of the narrative and/or tabular description of the graphics); the text of the two documents must be identical. Further, filers may not make a submission consisting solely of PDF documents; filers must include unofficial PDF copies only in submissions containing official documents in HTML or ASCII format.
Currently, the EDGAR system does not accept graphic or image material in HTML documents. Filers should continue to provide a fair and accurate description of the differences between a version including graphic or image material and the filed version, as required by Rule 304 of Regulation S-T. The EDGAR system will suspend submissions made during the HTML implementation period if they contain tags for graphic or image files. However, the optional, unofficial PDF copy of an EDGAR document may contain static graphic and/or image material. EDGAR submissions may not contain animated graphics (e.g., files with moving corporate logos or other animation), either in any official document or any unofficial PDF copy.
Currently, filers may not include hypertext links from HTML documents to external documents or web sites. (See Rule 105 of Regulation S-T.) Similarly, filers may not include hypertext links from HTML documents to external documents (including exhibits), whether or not the document is part of the same filing. However, electronic filers may include hypertext links to different sections within a single HTML document. A document may include an inactive textual reference to external sites or documents for informational purposes, but it may not include a link to the external site or document.
The Commission adopted a specific HTML standard for HTML documents submitted on the EDGAR system during the HTML implementation period. Because different Internet browsers used by filers or the public may display the information presented in an HTML document in a different fashion, a document viewed through one browser may have a different appearance and layout from the same filing viewed through a different browser. This would be especially evident when a filing printed in hard copy from one browser appears significantly different from the same filing printed out from another browser. To maximize the likelihood of consistent document appearance across different browsers, the Commission specified HTML 3.2 as the required standard for HTML documents.
The Commission also adopted a set of permissible HTML 3.2 tags for use in HTML documents during the HTML implementation period. These permissible tags allow for most HTML 3.2 formatting capability while eliminating active content and certain classes of hypertext links. The permissible tag set does not include proprietary extensions that are not supported by all browsers. The tag list is included in the EDGAR Filer Manual. In general, the EDGAR system will suspend submissions that contain tags that are not permitted.
Filers may not include tables within tables (nested tables) in their HTML documents. This is because users of EDGAR information may find it difficult to locate and use information in documents with nested tables. EDGAR submissions may not contain tags used to include executable code, either in any official submission or any unofficial PDF copy, at any time, either during the HTML implementation period or subsequently. (See Rule 106 of Regulation S-T.)
Rule 302 provides that signatures to or within electronic documents must be in typed form. The Commission amended this rule to make it clear that this provision relates only to required signatures to or within electronic submissions. Required signatures must be typed to ensure legibility of these signatures. Signatures in unofficial PDF copies are not required signatures.
Rule 304 prohibits the inclusion of graphic, image, or audio material in an EDGAR document. The Commission amended the rule to add the word "video" to make it clear that the prohibition also applies to video material. Rule 304 applies only to official filings, not to unofficial PDF copies, which may contain graphic and image material (but not animated graphics, audio or video material).
Rule 305 limits the number of characters per line. The Commission added paragraph (b) to the rule to provide that the limitations of paragraph (a) (i.e., the narrative portion of an electronic document may not exceed certain character limitations per line and other formatting restrictions) do not apply to HTML documents.
Rule 306 provides that foreign currency denominations be expressed in words or letters in the English language rather than representative symbols. The Commission amended the rule to allow HTML documents to include the representative foreign currency symbols specified in the EDGAR Filer Manual and to provide that the limitations will not apply to documents that are unofficial PDF copies.
Rule 307 provides that filers must present required bold-face type as capital letters in ASCII documents. The Commission amended the rule to make it clear that the provision does not apply to HTML documents because filers are able to include bold-face type in HTML documents.
Rule 310 provides that the requirement for marking changed materials is satisfied by inserting the tag
Paragraph (k)(2)(ii) of Securities Act Rule 497 requires investment company filers to submit additional copies of certain forms of profiles in the primary form intended for distribution to investors (e.g., paper or electronic media) or, if the profile is distributed primarily on the Internet, to provide the electronic address (URL) of the profile pages(s) in an exhibit to the electronic filing. The Commission amended paragraph (k)(2)(ii) of Rule 497 to allow a filer to submit with its electronically filed definitive form of profile an unofficial PDF copy of the profile instead.
The note to paragraph (a)(1)(iii) of Rule 101 of Regulation S-T instructed filers filing Schedules 13D and 13G with respect to foreign private issuers to file in paper because one of the required data elements – the IRS tax identification number – is not available for foreign issuers. However, a paper filing is no longer necessary. The staff advises these filers to include in the EDGAR submission header all zeroes (i.e., 00-0000000) for the IRS tax identification number, so that they may file electronically. The Commission amended the note to this rule to formalize the existing practice and permit electronic filing.
Previously, electronic filers could submit exhibits to Forms N-SAR, other than the Financial Data Schedule, either electronically or in paper. (See the former provisions of Rules 101(b)(7), 102(e)(2), and 303(a)(3)(ii) of Regulation S-T.) The Commission had allowed filers to submit these exhibits in paper because, during phase-in to electronic filing, registrants could file their Forms N-SAR electronically on a voluntary basis in advance of their phase-in date, at a time when they were not able to make any other electronic filings. With the completion of phase-in, the Commission now requires that filers submit all Form N-SAR exhibits electronically.
The Commission removed the Financial Data Schedule requirement from Item 22(a)(4) of Schedule 14A and from Forms N-1, N-1A, N-2, N-3, N-4, N-5, and S-6. The Commission believes that electronic filers that are registered investment companies will provide sufficient financial information in Schedule form by filing their Schedules with their Forms N-SAR. (Unit investment trusts are not required to submit the Schedule with their N-SARs.) Business development companies will continue to submit Schedules with their Form 10-K filings; face amount certificate companies and other investment companies filing on forms not unique to investment companies will continue to submit Schedules with the relevant forms.
On July 1, 1997, the Commission adopted a number of minor and technical amendments to its rules governing electronic filing, including the elimination of the transition rules applicable to the phase-in period. See Release No. 33-7427 (July 1, 1997)[62 FR 36450]. These amendments, effective August 7, 1997, are incorporated into the discussion of the rules throughout this document.
On October 24, 1997, the Commission adopted Rule 14 of Regulation S-T. See Release No. 33-7472 (October 24, 1997) [62 FR 58647](effective January 1, 1998). This rule provides that the Commission will not accept in paper format filings required to be submitted electronically, absent a hardship exemption.
On January 12, 1999, the Commission adopted a rule requiring Form 13F reports to be filed in electronic format. See Release No. 34-40934 (January 12, 1999) [64 FR 2843]. As of April 1, 1999, filers must submit Forms 13F electronically, unless a hardship exemption is available. (Also, as of April 1, 1999, filers may no longer submit their Form 13F reports on Form 13F-E.)
On April 15, 1999, the Commission adopted a rule requiring Form N-8F and applications for deregistration under Investment Company Act Rule 0-2 to be filed in electronic format. See Release No. IC-23786 (April 15, 1999) [64 FR 19469]. As of June 1, 1999, these filers must submit these filings electronically.
Many of the EDGAR rules apply to all electronic filers, whether the filings are processed by the Division of Corporation Finance or the Division of Investment Management. The most significant differences in the rules applicable to filings made with respect to investment companies, institutional investment managers and public utility holding companies relate to the treatment of exhibits and annual reports to security holders. The following discussion addresses the rules as applicable to all filers; where applicable, differences in treatment are noted.
The cornerstone of the EDGAR rules is Regulation S-T, a separate regulation containing rules prescribing requirements for filing electronically and the procedures for making such filings. Regulation S-T supersedes a number of the procedural requirements set forth in the Commission's rules and forms, for example, requirements relating to paper size and number of copies. The Commission amended its rules and forms as necessary to make references to specific electronic filing provisions. Electronic filers that obtain an exemption from the electronic filing provisions of Regulation S-T will continue to file in paper in accordance with the paper filing requirements. In addition, as discussed below, filers will continue to submit certain filings in paper.
Filers must prepare electronic filings in accordance with the procedures and technical formatting requirements set forth in the EDGAR Filer Manual promulgated by the Commission. See Rule 301 of Regulation S-T.
Rules 100 and 101 of Regulation S-T require, with certain exceptions, filers to submit electronically all documents, including filings, correspondence, and supplemental information, submitted by or relating to domestic registrants under the Securities Act, the Exchange Act, the Public Utility Holding Company Act, the Trust Indenture Act, and the Investment Company Act. Foreign private issuers and foreign governments generally are not subject to mandated electronic filing requirements. See Rule 600 of Regulation S-T.
Except as noted below, filers must submit electronically all filings made with respect to domestic registrants by third parties, whether business entities or individuals (e.g., proxy materials, tender offer materials, and Schedules 13D/G), absent a hardship exemption. This is true even if the third party filer is a foreign private issuer or foreign government.
The Commission will not accept in paper format filings required to be submitted electronically, absent a hardship exemption. (See Rule 14 of Regulation S-T.) If the staff inadvertently accepts a paper filing not permitted by the EDGAR rules, the filer is subject to certain penalties: ineligibility to use Securities Act forms incorporating by reference Exchange Act reports; inability to incorporate the paper filing by reference (Rule 303 of Regulation S-T); and tolling of certain tender offer dates.
Some documents may not be filed on EDGAR. Among the documents that are excluded are: confidential treatment applications; interpretive, no-action and exemptive requests; filings pertaining to Regulation A and other offerings exempt from Securities Act registration; shareholder proposal filings; filings under Section 8(f) of the Investment Company Act (except Forms N-8F and applications for deregistration filed under Investment Company Act Rule 0-2); investment company fidelity bonds and related documents; and litigation materials filed under Section 33 of the Investment Company Act. For now, filers must submit these documents in paper.
Public utility holding company filers must file in paper, under cover of Form SE, their annual reports to security holders submitted under the Public Utility Holding Company Act and certain reports and exhibits.
Electronic filers should exercise special care when submitting documents or parts of documents that are the subject of a confidential treatment request, including preliminary proxy materials relating to business combinations that the Commission may give confidential treatment if marked appropriately for such treatment under the proxy rules. Filers must submit these documents in paper or they will become available to the public immediately upon acceptance.
The Commission permits, but does not require, Corporation Finance filers to submit several types of documents electronically. Examples include: the annual report to security holders furnished to the Commission for its information under the proxy rules (see no. 9, below, for the treatment of an annual report to security holders that is a part of a filing); the Notice of Exempt Solicitation, the submission that indicates reliance by certain security holders on the Exchange Act Rule 14a-2(b) exemption from proxy material filing requirements under the revised proxy rules; and Form 11-K, the report for employee benefit plans.
As of December 18, 1995, filers may submit electronically, on a voluntary basis, Forms 3, 4 and 5, for reporting securities transactions of corporate insiders under Section 16 of the Exchange Act, and Form 144, the notice of proposed sale of securities under Rule 144 under the Securities Act. See Securities Act Release No. 7241 (November 13, 1995) [60 FR 57682]. Filers may submit electronically Forms 144 only if the issuer of the securities is a public company.
As of April 1, 1999, institutional investment managers must file their Form 13F reports electronically. See Release No. 34-40934 (January 12, 1999) [64 FR 2843]. Also, as of April 1, 1999, managers may no longer submit their Form 13F reports on Form 13F-E.
As of June 1, 1999, investment companies must file their Forms N-8F (and applications for deregistration under Investment Company Act Rule 0-2) electronically. See Release No. IC-23786 (April 15, 1999) [64 FR 19469].
As of June 28, 1999, investment company registrants filing Form N-SAR must submit electronically all exhibits to that form. (See Rule 311(d) of Regulation S-T.)
Rule 12 of Regulation S-T provides that the Commission will accept for filing magnetic tapes and diskettes at its Headquarters or at its Operations Center in Alexandria Virginia, during the Commission's current hours for receipt of paper filings, 8:00 a.m. to 5:30 p.m. Eastern time. (Note that the Commission is discontinuing the acceptance of diskettes effective July 10, 2000. See Release No. 33-7855 [65 FR 24788] referred to in Section B.1 above.) The Commission permits direct transmission filers to transmit until 10:00 p.m., but, generally, the Commission will consider any direct transmission filing that commences after 5:30 p.m., if accepted, as filed as of the next business day. (See Rule 13(a) of Regulation S-T.) The exception to this rule is that registration statements filed to increase the number of shares, as provided by Securities Act Rule 462(b), will receive the same day's filing date if transmitted by 10:00 p.m. (See Rule 13(b) of Regulation S-T and Securities Act Release No. 7168 (May 11, 1995)). Any direct transmission filing commencing before 5:30 p.m., if accepted, will receive that day's filing date.
Rule 102 of Regulation S-T provides filers are not required to refile in electronic format exhibits previously filed in paper when incorporated by reference into an electronic filing. After becoming subject to mandated electronic filing, a filer must file any new exhibits electronically, absent a hardship exemption. Where an electronic amendment is filed to an exhibit previously filed in paper, the filer must submit electronically only the amendment; the filer will not have to refile electronically the previously filed paper exhibit to which the amendment relates, except for the articles of incorporation, by-laws, and investment advisory contract of the registrant, which must be restated in their entirety upon amendment. Public utility holding company filers are not subject to this requirement. See Rule 102(f) of Regulation S-T.
The rules for investment companies differ. In general, an investment company may incorporate by reference only to documents filed electronically. See Rule 102(e) of Regulation S-T.
Two hardship exemptions are available to permit a filing or other submission to be made in paper rather than electronic format. First, Rule 201 of Regulation S-T provides a temporary hardship exemption for electronic filers, generally for unanticipated technical difficulties in submitting an electronic document. The exemption may be appropriate, for example, for a particular document that a filer is unable to file electronically because of problems with the filer's computer equipment that had been used previously to transmit either test or required electronic filings successfully. Under that exemption, the filer may make the filing in paper (with a legend on the cover page identifying it as being submitted under Rule 201) and then follow it with a confirming electronic copy within six business days so that the electronic database will be complete. An electronic filer may take advantage of the exemption simply by filing the subject document in paper under cover of Form TH, Notification of Reliance on Temporary Hardship Exemption. No Commission staff involvement is required. The sanctions for violating electronic filing requirements mentioned above also apply where a filer is required to submit a confirming electronic copy of a document filed in paper under a temporary hardship exemption but fails to do so.
Second, under Rule 202 of Regulation S-T, a continuing hardship exemption is available to electronic filers under limited circumstances for exhibits or a filing or group of filings. For example, this exemption might be appropriate for an exhibit consisting of another government agency's voluminous form that a filer cannot convert into electronic format without causing the filer undue hardship. Unlike the temporary hardship exemption, the staff must act upon a written application for a continuing hardship exemption. If the staff grants the exemption, the filer may make the submission in paper.
In most cases, a filer need not follow up a paper filing under a continuing hardship exemption with an electronic copy. However, under some circumstances, the staff believes that it would be in the public interest for the electronic database to contain the document in question. Rule 202(d) allows the grant of a continuing hardship exemption for a limited time only. When the time is up, the filer must submit a confirming electronic copy.
Paper filings submitted under a continuing hardship exemption must include a legend on the cover page of the document identifying it as being submitted in paper under Rule 202 of Regulation S-T. Corporation Finance filers should direct inquiries concerning continuing hardship exemptions to the Office of EDGAR and Information Analysis in the Division of Corporation Finance at (202) 942-2940. Investment company filers should direct their inquiries to the EDGAR contact in the Division of Investment Management at (202) 942-0978.
In addition to the two hardship exemptions, Rule 13 of Regulation S-T permits an electronic filer to request an adjustment of the filing date of an electronic document when the electronic filer encounters technical problems beyond its control that prevent electronic submission by the due date specified by the applicable form or rule. Corporation Finance filers should direct requests for filing date adjustments to the Office of EDGAR and Information Analysis at (202) 942-2940, and investment companies should direct their requests to the EDGAR contact in the Division of Investment Management at (202) 942-0978.
Since the EDGAR system cannot accept manual signatures, Rule 302 of Regulation S-T provides that required signatures in electronic filings must be submitted in typed form. Signature requirements for electronic filings remain the same as for paper documents in all other respects. Electronic filers must retain a manually signed signature page or other document authenticating, acknowledging or otherwise adopting the signatures that appear in typed form within an electronic filing. Filers must make this document available to the Commission or its staff upon request for a period of five years. Each signatory to the filing must execute the manually signed authentication document before or at the time the filing is made.
Following a recommendation of the Task Force on Disclosure Simplification, in May 1996 the Commission changed its rules governing signatures to allow typed signatures on all filed documents, with limited exceptions, both paper and electronic. Manually signed signature authentication documents are required whenever typed signatures are filed with the Commission.
Rule 103 of Regulation S-T provides a safe harbor against liability for errors in, or omissions from, documents filed electronically that result solely from electronic transmission errors beyond the control of the electronic filer. The safe harbor is available where the electronic filer takes corrective action as soon as reasonably practicable after becoming aware of the error or omission.
Because of difficulties associated with sending and interpreting graphic, image, audio, and video material, EDGAR does not accommodate electronic submission of such material. (Note, however, that the Commission is permitting, and in some cases requiring, graphic and image material in HTML filings. See Part B.1 above.) Rule 304 of Regulation S-T, governing treatment of omitted graphic, image, audio, and video information, requires that fair and accurate descriptions or transcripts of omitted material be included either at the point in the text where the omission occurs or in an appendix to the electronic filing.
The graphic, image, audio, and video material in the version of the document distributed to investors is deemed part of the filing and is subject to the liability and antifraud provisions of the federal securities laws. Filers do not need to describe immaterial differences between the distributed and electronically filed versions of a document, such as type size or font, pagination or corporate logos. A safe harbor provides that, to the extent such descriptions or transcripts represent a good faith effort to fairly and accurately describe omitted material, they will not be subject to the liability provisions of the federal securities laws. The filer must retain any document containing graphic, image, audio, or video material that is omitted from an electronic filing for a period of five years after the filing date of the document or the date appearing on the document, whichever is later. Filers must make such documents available to the Commission staff upon request.
Rule 304(d) of Regulation S-T gives special treatment to the performance line graph required by Item 402(l) of Regulation S-K to be included in proxy and information statements relating to an annual meeting of security holders at which directors are to be elected (or special meeting or written consents in lieu of such meeting). Filers must present the numerical data from which the graph is created in the body of the electronic proxy or information statement in tabular or chart form. Of course, the paper version of the proxy statement disseminated to security holders must include the prescribed line graph. The Commission has expanded the scope of Rule 304(d) to encompass the submission by investment companies of the line graph required by Item 5A of Form N-1A. See Release No. 33-7427.
The treatment of annual reports differs for Corporation Finance, investment company, and Public Utility filers.
Annual reports to security holders (glossy reports) for Corporation Finance filers frequently contain extensive graphic information that is difficult to prepare in electronic format. Accordingly, the rules provide special treatment for these documents. As discussed above, Rule 101 of Regulation S-T provides that filers may furnish glossy reports for the Commission's information as required by the proxy and information statement rules (e.g., Exchange Act Rule 14a-3(c)) in either paper or electronic format. In contrast, Rule 303 of Regulation S-T states that if the glossy report is incorporated by reference into any filing – for example, a Form 10-K or a Form S-2 – filers must file the portions incorporated by reference in electronic format as an exhibit. The same is true for a quarterly report to security holders incorporated by reference into a filing.
Investment company filers are required to file all annual and semi-annual reports to security holders electronically. Public utility holding company filers will continue to submit annual reports in paper when they are submitted as part of a filing under the Public Utility Holding Company Act.
Form 10-K and Form 10-KSB both require issuers reporting under Section 15(d) of the Exchange Act to furnish to the Commission for its information any annual report to security holders covering the registrant's last fiscal year and every proxy statement, form of proxy or other proxy soliciting material sent to more than ten of the registrant's security holders with respect to any annual or other meeting of security holders. When these issuers submit this information with their Exchange Act annual reports, it is not deemed filed with the Commission unless it is incorporated by reference into the report itself. Filers should submit these proxy materials electronically. Consistent with the requirements to furnish annual reports to security holders under the proxy rules, registrants have the option to submit their annual report to security holders under these annual reporting provisions either in paper or in electronic format.
As noted above, Rules 100 and 101 of Regulation S-T require third party filers to transmit their Schedules 13D and 13G via EDGAR if the company to which the filing relates is an electronic filer. If the subject company is a foreign private issuer, filers may submit these filings in paper.
In addition, Rule 101 of Regulation S-T provides that, where these schedules originally were filed in paper, the first electronic amendment must restate the entire text of the schedule, as amended. Where the amendment is made to report a transaction that would allow the filer to exit the reporting system, the filer need only file the amendment. Consistent with the general treatment of exhibits filed electronically, if any exhibit to a Schedule 13D or 13G is amended, the filer need only file the text of the amendment.
Currently, all domestic EDGAR registrants whose filings are processed by the Division of Corporation Finance or Investment Management must submit Financial Data Schedules to the Commission. However, the Commission has rescinded the requirement for registrants to submit FDSs for filings due and submitted after January 1, 2001. (See Release 33-7855 [65 FR 24788] referred to in Part B.1 above.)
Domestic EDGAR registrants whose filings are processed by the Division of Corporation Finance currently submit FDSs under Item 601(c) of Regulations S-K and S-B. See Securities Act Release No. 7072 [59 FR 36258]. Financial Data Schedules, which are available to the public, set forth specified financial information from registrants' financial statements, schedules and other disclosure requirements, such as industry guides. An electronic filer must furnish the Financial Data Schedule as an Exhibit 27 to its first mandated electronic filing that includes financial statements, not incorporated by reference from an earlier filing, with information from the most recent fiscal year and/or interim year to date to be reflected in the Schedule. Thereafter, filers must furnish such Schedules as Exhibit 27 to any registration statement, report or other document filed with the Commission that includes updated annual or interim financial statements (otherwise than by incorporation by reference). In most cases, the Schedule will be submitted with each Form 10-K and 10-Q. Failure to furnish a required Financial Data Schedule will make the registrant ineligible to use Forms S-2, S-3, and S-8 until the registrant files the Schedule.
The Commission adopted two codifications of interpretive letters relating to Financial Data Schedules. See Release No. 33-7427. These codifications are found in notes to Item 601(c) of Regulations S-B and S-K. First, consistent with the requirement that filers submit Financial Data Schedules only when updated financial statements are filed, an issuer of asset-backed securities that is not required to file financial statements with the Commission in its reports filed under Sections 13(a) or 15(d) of the Exchange Act is not required to file a Financial Data Schedule connection with the reports. Second, registrants do not need to restate prior Financial Data Schedules for a recapitalization that is in the form of a stock split or reverse stock split, provided that the
Investment company registrants are required to furnish a Financial Data Schedule as an exhibit to their electronic submissions of Forms N-SAR. For the specific requirements for Financial Data Schedules, see Rule 483(e) of Regulation C and Appendix E of the EDGAR Filer Manual.
Public utility holding company filers are required to submit Financial Data Schedules as exhibits to Forms U-5S, U-1, U-13-60, and U-3A-2 filed electronically; the specific requirements are set forth in the respective form.
As is true with all exhibits filed on EDGAR, filers should submit the Financial Data Schedule as a separate document (EX-27) within the electronic submission. If the schedule is included simply as text within another document in the submission, the registrant will not receive credit for submitting the required Financial Data Schedule and will be subject to the sanctions set out above until the schedule is correctly submitted in an amendment to the filing.
While the Financial Data Schedule is submitted as an exhibit, it is not deemed "filed" for purposes of liability under the federal securities laws. Rule 402 of Regulation S-T also provides a safe harbor, stating that any item provided in the Schedule, in accordance with the rules governing the Schedule, will not be subject to liability under the federal securities laws, except to the extent that the financial statements and other information from which the data were extracted violate those laws.
As required by statute (Section 35A of the Exchange Act), Rule 101(d) of Regulation S-T requires all electronic filers to submit a copy of their first electronic filing to the Commission in paper format. Either computer print-outs of EDGAR filings or the traditional paper filings are acceptable. If the filer is submitting a paper print-out of the electronic filing, they must omit the header information to ensure that confidential information contained in the header remains non-public. Filers must place a legend at the top of the paper copy indicating that it is being submitted under Rule 101(d) of Regulation S-T. No signatures are required; these are copies, not official filings. The filers may send the paper copy by regular mail. They should mail the copy so that it is received by the Commission no later than six business days after the electronic filing. Filers should address the copy to: OFIS Filer Support, SEC Operations Center, 6432 General Green Way, Alexandria, VA 22312-2413.
The EDGAR system and Rule 501 of Regulation S-T are designed to facilitate electronic filing by allowing filers to submit in advance of an intended filing information intended to become part of that filed document by its subsequent inclusion in the electronic filing. A modular submission feature allows a filers to submit information, such as financial statements, to a non-public EDGAR database for inclusion in as many filings as the filer designates, so long as the information remains current.
A similar feature is segmented filing, in which a filer may submit various segments of a document to be filed with the Commission to the EDGAR non-public data storage area up to six business days in advance of the anticipated filing date. For example, filers may submit voluminous exhibits in advance of a filing. On the anticipated filing date, the electronic filer may submit a master segment instructing EDGAR to assemble the desired filing from the previously submitted segments and file it. Filers may use segments only once.
Regulation S-T provides that neither modular submissions nor segments will be deemed "filed" or subject to liability under the federal securities laws until the filer includes the information in an electronic filing.
The Commission has adopted four paper forms specifically for use with the EDGAR system. Form ID is used to apply for the codes necessary for access to file on EDGAR. Form ID also is used to provide identifying information on companies and individuals who are required to file with the Commission as well as information on agents who are authorized to file on behalf of such persons. Filers also may use Form ID to amend the codes received in response to the original Form ID application, in which case filers should clearly label the Form ID as an amendment.
Filers use Form ET when they submit electronic filings to the EDGAR on magnetic tape or diskette. (Note that the Commission is discontinuing the acceptance of diskettes effective July 10, 2000. See Release 33-7855 [65 FR 24788] referred to in Section B.1 above.) The form requests specific information relating to the tape or diskette submitted, the word processing package used, and the hardware used to prepare the diskette. Electronic filers must use Form SE as a cover sheet attached to any paper format exhibit, including exhibits filed under a temporary or continuing hardship exemption and exhibits (other than Financial Data Schedules) to Form N-SAR. Finally, filers use Form TH as a cover sheet accompanying documents filed in paper under a temporary hardship exemption, as described in no. 5 above.
Rule 3a of the Commission's rules governing Informal and Other Procedures requires all electronic filers to pay fees via the lockbox at the U.S. Treasury designated lockbox depository maintained by the Commission at the Mellon Bank in Pittsburgh, Pennsylvania. Filers may pay by direct wire transfer or by mailing or delivering a check or cash to the lockbox. Rule 13(c) of Regulation S-T requires electronic filers to pay filing fees in accordance with the lockbox procedures, including those pertaining to documents filed in paper under a hardship exemption. Thus, persons subject to electronic filing must tender all fees to the lockbox at Mellon Bank – not to the Commission's filing desk – even when physically filing a paper document, diskette or magnetic tape at the Commission's filing desk.
The Commission will deem a Securities Act registration statement (including a Securities Act filing by an investment company) filed as of its date of receipt, provided that all of the conditions of acceptance are satisfied, including verification of fee payment. If payment is not confirmed until the day following receipt by the Commission, the Commission will assign the filing a filing date as of the date of confirmation of payment, not the date of receipt. (For information relating to fee confirmation with respect to registration statements filed for the purpose of increasing the number of shares, as provided under Securities Act Rule 462(b), see Securities Act Release No. 7168 (May 11, 1995).) If the Commission staff cannot verify payment, EDGAR will place the filing in a suspense file for up to six business days, and the staff will so notify the filer. Since EDGAR verifies fee payments made via wire transfer on a near real-time basis (every 15 minutes), while it verifies those made by check on a daily basis, a filer may wish to pay fees with respect to a time-sensitive Securities Act registration statement by wire transfer to expedite acceptance processing.
Filers should direct questions concerning fee payment to Filer Support at (202) 942-8989.
The EDGAR rules apply only to filings made with the Commission; the rules do not affect the obligation of filers to deliver to security holders or potential investors documents such as prospectuses, tender offer materials and proxy or information statements. As the ability to send and receive information in electronic form has become more prevalent, issuers and other market participants have begun requesting interpretive guidance regarding the electronic delivery of these documents. Moreover, many issuers are providing information through electronic means, primarily through the Internet.
On October 6, 1995, the Commission issued an interpretive release (1995 Interpretive Release) more fully addressing electronic delivery issues. (See Securities Act Release No. 7233.)
The 1995 Interpretive Release is based on the determination that information distributed through electronic means may be viewed as satisfying the delivery or transmission requirements of the federal securities laws if such distribution results in the delivery to the intended recipients of substantially equivalent information as these recipients would have had if the information were delivered to them in paper form. The use of electronic media should be at least an equal alternative to the use of paper delivery. However, until such time as electronic media becomes more universally accessible and accepted, paper delivery of information will continue to be available. The release provides guidance regarding the manner in which filers may achieve electronic delivery and includes many illustrative examples.
To facilitate electronic delivery, the Commission adopted rule changes to codify some of the interpretations regarding Commission rules that are premised on the distribution of paper documents (see Securities Act Release No. 7289 (May 9, 1996)). The Commission has revised the rules to make it clear that filers may modify paper-based requirements relating to font size, bold-face type, red ink, graphics, and mailing as appropriate for documents delivered in electronic format. These rule changes are not intended to affect any substantive requirement. On the same date, the Commission issued an interpretive release primarily addressing issues relating to the use of electronic media by broker-dealers, transfer agents and investment advisers for delivery of information, but also expanding on some issues addressed in the 1995 Interpretive Release (Securities Act Release No. 7288 (May 9, 1996)). The Commission also issued an interpretive release relating to the use of Internet web sites to offer securities, solicit securities transactions, or advertise investment services offshore (Securities Act Release No. 7516 (March 23, 1998)).
Since the adoption of the interim rules in February 1993, the Commission staff has been working with electronic filers to help them satisfy their electronic filing obligations. The following is a list of staff suggestions to help electronic filers avoid some of the more common errors associated with electronic filing. Filers should direct technical questions relating to filing on EDGAR to EDGAR Filer Support at (202) 942-8900.
Filers frequently ask the staff a number of questions relating to the preparation and submission of Financial Data Schedules (FDS). Some of the more important and recurrent questions are outlined below.
12. Paper Copies
13. Modular Submissions/Segmented Filings
14. EDGAR Forms
15. Filing Fees; Lockbox
16. Other Electronic Document Issues
17. Common Filing Concerns for EDGAR Filers
Use:
To Submit:
497K1, 497K2, 497K3A, or 497K3B, as appropriate
profiles for open-end management investment companies
485BXT
a filing under rule 485(b) to extend the effective date of a previous 485(a)
POS 8C
post-effective amendments under the 1933 Act, or under both the 1933 and 1940 Acts, filed by registrants filing on Forms N-2 and N-5
N-14 8C
Form N-14 registration statements filed by closed-end investment companies
N-30D
annual and semi-annual reports mailed to investment company shareholders filed under Rule 30d-1 (do not use "ARS" for investment companies)
N-30B-2
other investment company periodic and interim shareholder reports
18. Questions Relating to Financial Data Schedules
General
1. Question:
What are these Schedules used for?
Foreign private issuers and foreign government issuers who volunteer to file on EDGAR are not required to furnish an FDS.
Investment Management filers (except unit investment trusts) are required to furnish a FDS as an exhibit to Form N-SAR.