On November 17, 2020, the Securities and Exchange Commission (the “SEC") announced that it had approved amendments to Regulation S-T and the Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR") Filer Manual relating to the use of electronic signatures for SEC filings, including registration statements, reports on Forms 10-K, 10-Q and 8-K, and Section 16 reports. The new rules expressly provide for the use of e-signature methods (e.g., “DocuSign" and “AdobeSign") for these filings, subject to new authentication procedures summarized below.
In general, where a document submitted electronically to the SEC is required to be signed, the signature appearing in the filing must appear in the electronic filing in typed form, not a manual or graphic format. Signatures that are not required in a filing may appear as in manual or graphic form (e.g., the signature in a letter to shareholders included in a Proxy Statement).
Under Rule 302(b) of Regulation S-T, when a typed signature must be used, the signatory must sign either a signature page or another document that authenticates, acknowledges or otherwise adopts the signature appearing in the filing, which the filer must retain in its records to authenticate that the signer authorized his or her signature to be typed into the filed document. The amendments define this signed record as an “authentication document" and provide that it may be electronically signed, provided that certain conditions are met.
1. New Electronic Signature Attestation Document for Signatories
New Rule 302(b)(2) of Regulation S-T provides that, before a signatory may electronically sign an authentication document, the signatory must manually sign another document (an “electronic signature attestation document") by which the signatory agrees that the use of the person's electronic signature constitutes the legal equivalent of his or her manual signature on authentication documents.
A form of electronic signature attestation document is attached to this posting and available here
The filer must retain the electronic signature attestation document for as long as the signatory uses an electronic signature and for at least seven years after the date of the most recent electronically signed authentication document. (In contrast, a manually or electronically signed attestation document must be retained for only five years from the date of the filing.)
2. New Authentication Procedures for Registrants
The new rules amend the EDGAR Filer Manual to specify that the system used to electronically sign an authentication document must, at a minimum:
- require the signatory to present a physical, logical, or digital credential that authenticates the signatory's individual identity;
- reasonably provide for non-repudiation of the signature;
- provide for the signature to be attached, affixed, or otherwise logically associated with the signature page or document being signed; and
- include a timestamp to record the date and time of the signature.
Consistent with the treatment of manual signatures for filings:
- each authentication document must be executed before or at the time a filing is made; and
- must be retained by the registrant for a period of five years.
The electronic filer, upon the SEC's request, must furnish to the SEC a copy of the manually signed electronic signature attestation document and any manually or electronically signed authentication document retained pursuant to the rules. The new rules provide that any manually signed document, including an electronic signature attestation document, may be retained and stored electronically.
3. Accelerated reliance on the amended rules
The amendments to Regulation S-T and to the EDGAR Filer Manual will become effective upon publication in the Federal Register. On November 20, 2020, the staff updated its statement to address filing procedures affected by COVID-19 to state that the staff would not recommend enforcement action with respect to reliance on the requirements of Rule 302(b) in advance of the effectiveness of the new rules, provided that all of the requirements of the amended Rule 302(b) have been met.
We would like to thank Rodrigo Surcan in our New York office for his work on this article.
Form of Attestation of Electronic Signature
Pursuant to Rule 302 under Regulation S-T
(Required to be manually executed before I may electronically sign an SEC filing or submission pursuant to Rule 302 under Regulation S-T)
I, the undersigned, do hereby attest and agree that:
(i) whenever I have electronically signed (i) the signature page of a document to be filed with or submitted to the U.S. Securities and Exchange Commission (the “Commission"), or (ii) any other document authenticating, acknowledging or otherwise associated with and adopting my signature on such a document, my electronic signature shall constitute the legal equivalent of my manual signature for purposes of authenticating my signature to the Commission filing or submission for which it is provided;
(ii) any person required to make or assist in making a filing with or submission to the Commission may rely on my electronic signature to the signature page of such filing or submission, or to any other document authenticating, acknowledging or otherwise associated with my signature on such filing or submission, as evidence of my consent to my signature being added to such filing or submission (together with any other necessary information, including the date to be used for such signature, filing, or submission) and to such filing or submission being made with the Commission, unless and until such person receives my express revocation of this attestation in writing;
(iii) Any person making a filing with the Commission which I have signed electronically is authorized to retain the original or an electronically stored copy of this attestation for as long as my authorization to use my electronic signature to satisfy the requirements under Rule 302 of Regulation S-T is in effect, and for a minimum of seven years after the date of the most recent electronically signed filing or submission; and
(iv) I consent to any person furnishing a copy of this attestation (which may be retained and stored via electronic means) to the Commission upon its request.
IN WITNESS WHEREOF, I have manually executed this attestation as of the date set forth below.
Name: [SIGNATORY'S NAME]
Email: [SIGNATORY'S EMAIL]
[Form of attestation updated February 1, 2021]