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 the undersigned may electronically sign an authentication document pursuant to Rule 302 under Regulation S-T)
The undersigned, [SIGNATORY'S NAME], currently the duly elected or appointed [SIGNATORY'S TITLE] of [REGISTRANT'S NAME] (the “Company"), does hereby attest and agrees that:
(i) when using electronic signatures for purposes of Rule 302(b)(1) of Regulation S-T in connection with any electronic submission of a document with the U.S. Securities and Exchange Commission (the “Commission"), the use of such electronic signature shall constitute the legal equivalent of the undersigned's manual signature for purposes of authenticating the undersigned's electronic signature to any filing with the Commission for which it is provided;
(ii) the undersigned's authorization under this attestation shall remain legally valid until the earlier of:
(a) the date the undersigned ceases to be a duly elected or appointed officer or director of the Company, except with respect to filings pursuant to Section 16 under the Securities Exchange Act of 1934, as amended, and
(b) the undersigned's express revocation provided to the Company in writing;
(iii) the undersigned and the Company shall retain this attestation for as long as the undersigned may use an electronic signature to satisfy the requirements under Rule 302 of Regulation S-T and for a minimum of seven years after the date of the most recent electronically signed authentication document; and
(iv) the undersigned and the Company shall furnish a copy of this attestation (which may be retained and stored via electronic means) to the Commission upon its request.
For the purposes of this attestation, the terms:
1. “electronic signature" means an electronic sound, symbol, or process (including, without limitation, “.pdf," “.tif," “.jpg" or other format), attached to, or logically associated with (including, without limitation, DocuSign and AdobeSign), a record (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) and executed or adopted by a person with the intent to sign the record; and
2. “signature," when used in connection with an electronic filing, means a computer representation of any symbol or series of symbols comprising a name executed, adopted, or authorized as a signature.
IN WITNESS WHEREOF, the undersigned has manually executed this attestation as of the date first written above.
Name: [SIGNATORY'S NAME]
Title: [SIGNATORY'S TITLE]
Email: [SIGNATORY'S EMAIL]