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Recent SEC Amendments Bring Changes to Filing Fee Disclosure and Payment Methods

On October 13, 2021, the Securities and Exchange Commission (the “SEC") adopted amendments to modernize filing fee disclosure for certain forms and schedules, as well as update payment methods for fees related to these filings. The final rule highlighted three primary goals of the amendments: (i) update disclosure requirements related to filing fees in order to provide more certainty to filers that the proper fee was calculated and facilitate the SEC staff's review of such fee; (ii) modernize the payment method for filing fees and reduce the cost and burden on processing fee payments; and (iii) permit filers to reallocate previously paid filing fees in more situations than what was previously permitted. An overview of these changes is provided below. The amendments also contained certain technical, conforming and clarifying changes related to filing fee-related instructions and information.

The amendments will become effective January 21, 2022, with the changes to fee payment methods becoming effective May 31, 2022. The requirements for filing fee disclosures will be phased in over time as summarized below.

Forms and Schedules Impacted by the Amendments

                The amendments affect the following Securities Act forms: Form S-1, Form S-3, Form S-4, Form S-8, Form S-11, Form F-1, Form F-3 and Form F-10.  The amendments also affect the following Exchange Act schedules: Schedule 13E-3, Schedule 13E-4F, Schedule 14A, Schedule 14C, Schedule TO and Schedule 14D-1F. 

Amendments to Fee Table Location, Structure, and Content

                Location. The amendments require that fee-bearing forms include an attached exhibit with two to three tables encompassing all fee-related information. This a change from the former requirement of a single fee table on the cover page of each form.

                Structure. The amendments require that all required information for a fee calculation be provided in a structured format of Inline XBRL as provided by new Rule 408 of Regulation S-T. The amendments relating to these structure changes will be phased in over time based on filer status. Large accelerated filers must comply with the new structure for filings submitted on or after July 31, 2024. All other filers, including accelerated filers, must comply with the new structure for filings submitted on or after July 31, 2025.

                Content. The amendments require that columns be added to the basic filing fee tables for registration statements to include information regarding, among other things:

  • the type of security being newly registered or carried forward;
  • the registration form type, file number and initial effective date of one or more previously filed registration statements associated with any unsold securities that the registrant is carrying forward;
  • the fees paid;
  • entries for total offering amounts, total amount of fee offsets and the total fee due net of fee offsets and any previously paid amount; and
  • the current SEC “fee rate."

In addition, new tables are to be added to provide disclosure regarding any fee offsets claimed by the registrant under Rule 457(b) and (p) and Rule 0-11(a)(2) and disclosure related to any reliance on Rule 429 to file a single prospectus that relates to two or more registration statements.

The adoption of the changes is accomplished through adding new Item 601(b)(107) of Regulation S-K and amending the applicable forms and schedules to include the table format filers can use to prepare their new filing fee exhibits. 

Fee Filing Payment Methods

                Currently, filers may pay SEC filing fees via wire transfer, paper check or money order. Recognizing that the majority of filers no longer use paper check or money order, the new amendments now permit payment of SEC filing fees via wire transfer or by using an automated clearing house (“ACH"), debit card or credit card, subject to certain limitations. Filers will no longer be permitted to pay filing fees using paper check or money order. 

Fee Offset Amendment

                The new filing fee amendments will also permit registrants to offset some or all of the filing fee due on the current registration statement with the filing fees previously paid for unsold securities under a previously filed registration statement. This amendment is generally consistent with, but goes beyond, previous SEC staff interpretive guidance on reallocating filing fees in connection with pre-effective amendments. In situations where registrants want to increase the amount registered of one or more classes of securities and concurrently decrease the amount registered of one or more other classes on the same registration statement, the registrant may, in a pre-effective amendment, calculate the total filing fee due and credit the amounts previously paid in connection with the registration statement. This option is not available for registrants who seek only to increase or decrease the amount of a class of securities (with no offsetting increase or decrease of another class) or to simply add a class of securities. This amendment is not available to registrants who previously relied on 457(o). This amendment will be effective January 31, 2022.

For more information on the fee filing amendments, please see the SEC's Final Rule here.

Special thanks to associate Abby Joens-Witherow for her work on this post.

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