A new Compliance and Disclosure Interpretation (C&DI) affords companies relief from the requirement to file seven hard copies of the annual report to shareholders with the Securities and Exchange Commission (SEC). Under the C&DI, which was issued yesterday, companies may now satisfy this requirement by posting the annual report on their corporate websites, as long as it remains available on the site for one year. The C&DI is available here and excerpted below.
The C&DI will be welcome news to companies doing “glossy” annual reports as well as those that do a “10-K wrap.” The “10-K wrap” has become increasingly common in recent years and combines the Form 10-K with a “wrap-around” section that often contains highlights about the company and includes certain additional information required in the annual report but not in the Form 10-K under SEC rules. Until now, the annual report to shareholders has remained one of the few documents still filed in hard copy with the SEC, in part because it does not easily lend itself to filing on EDGAR due to graphics and similar features that are commonly included in the report.
Companies should update their annual meeting checklists accordingly. For NYSE companies, it is important to keep in mind one situation where paper copies of annual meeting materials are still required: three copies of the proxy materials (including the proxy card) must be filed with the NYSE no later than the date on which the materials are released to shareholders. It is our understanding that the NYSE does not expect hard copies of the annual report to shareholders. NASDAQ companies are not subject to a similar requirement, as NASDAQ permits companies to satisfy its rules by filing the Form 10-K and proxy materials on EDGAR.
Proxy Rules and Schedule 14A (Regarding Submission of Annual Reports to SEC under Rules 14a-3(c) and 14c-3(b))
Last Update: November, 2016
Question: Exchange Act Rule 14a-3(c) and Rule 14c-3(b) require registrants to mail seven copies of the annual report sent to security holders to the Commission “solely for its information.” A similar provision in Form 10-K requires certain Section 15(d) registrants to furnish to the Commission “for its information” four copies of any annual report to security holders. Can a registrant satisfy these requirements by means other than physical delivery or electronic delivery pursuant to Rule 101(b)(1) of Regulation S-T?
Answer: Yes. The Division will not object if a company posts an electronic version of its annual report to its corporate web site by the dates specified in Rule 14a-3(c), Rule 14c-3(b) and Form 10-K respectively, in lieu of mailing paper copies or submitting it on EDGAR. If the report remains accessible for at least one year after posting, the staff will consider it available for its information.