SEC Extends Guidance on Manual Signatures Required under Rule 302(b) of Regulation S-T as a Result of Coronavirus (COVID-19)

On June 25, 2020, in light of the continuation of the coronavirus (“COVID-19”) pandemic, the Division of Corporation Finance, the Division of Investment Management and the Division of Trading and Markets (collectively, the “Divisions”) of the Securities and Exchange Commission (the “SEC”) extended its guidance discussed in our earlier Viewpoints advisory regarding manually signed documents for signatures to electronic filings under the federal securities laws. The SEC has extended its guidance until the SEC provides public notice that it no longer will be in effect, which notice will be published at least two weeks before the guidance ends.

Under Rule 302(b) of Regulation S-T, “[e]ach signatory to an electronic filing shall manually sign a signature page or other document authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing. Such document shall be executed before or at the time the electronic filing is made and shall be retained by the filer for a period of five years. Upon request, an electronic filer shall furnish to the [SEC] or its staff a copy of any or all documents retained pursuant to this section.”

Although the Divisions expect filers to comply with the requirements of Rule 302(b) to the fullest extent practicable, in light of the fact that some persons and entities may experience difficulties satisfying these requirements due to circumstances arising from COVID-19, the staff of the Divisions will not recommend the SEC take enforcement action with respect to the requirements of Rule 302(b) if:

• a signatory retains a manually signed signature page or other document authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing and provides such document, as promptly as reasonably practicable, to the filer for retention in the ordinary course pursuant to Rule 302(b);

• such document indicates the date and time when the signature was executed; and

• the filer establishes and maintains policies and procedures governing this process.

If a signatory is teleworking, the signatory could execute a hard copy of the signature page remotely and hold that page for delivery to the filer upon his or her return to the place of work or the signatory may provide the filer an electronic record (such as a photograph or pdf) of such document when it is signed.

The SEC continues to state that it will address other issuer-related COVID-19 issues not addressed in its other regulatory relief efforts or other announcements on a case-by-case basis in light of their fact-specific nature.

SEC Extends Email Delivery of Certain Paper Documents as a Result of Coronavirus (COVID-19)

On June 25, 2020, in light of the continuation of the coronavirus (“COVID-19”) pandemic, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued a statement extending its guidance regarding the delivery of certain paper documents to the SEC discussed in our earlier Viewpoints advisory.

The SEC has extended this guidance until the SEC provides public notice that it no longer will be in effect, which notice will be published at least two weeks before the guidance ends. Under the guidance, the Division will not recommend enforcement action to the SEC if the applicable documents are submitted to the SEC via email and the filer attaches a complete document, including any required exhibits, as PDF attachments to an email sent to CorporationFinancePaperForms@SEC.gov.

The Division’s statement covers the following forms:

• Annual reports to security holders furnished by foreign private issuers on Form 6-K pursuant to Rule 101(b)(1) of Regulation S-T;

• Forms 11-K pursuant to Rule 101(b)(3) of Regulation S-T;

• Periodic reports and distribution reports filed by certain international development banks pursuant to Rule 101(b)(5) of Regulation S-T;

• Reports or other documents furnished by foreign private issuers on Form 6–K pursuant to Rule 101(b)(6) of Regulation S-T; and

• Unabridged foreign language documents and English translations of a foreign government’s or its political subdivision’s latest annual budget pursuant to Rules 306(b) and (c) of Regulation S-T.

In addition, if a filer is unable to provide a manual signature on a document submitted by email, the Division will not recommend enforcement action to the SEC if the filer provides a typed form of signature in lieu of the manual signature and:

• the signatory retains a manually signed signature page or other document authenticating, acknowledging, or otherwise adopting his or her signature that appears in typed form within the email submission and provides such document, as promptly as practicable, upon request by Division or other SEC staff;

• such document indicates the date and time when the signature was executed; and

• the filer establishes and maintains policies and procedures governing this process.

Filers may continue to submit these documents to the SEC mailroom, but the Division cautioned that there may be delays in the processing of such documents.