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June 9, 2022

SEC Mandates Electronic Filing of Form 144 and Other Documents

Advisory

On June 3, 2022, the SEC adopted amendments that continue the expansion of the EDGAR electronic filing system by mandating the electronic filing or submission on EDGAR of several documents previously permitted to be filed or submitted in paper format, including:

  • Form 144 (which will be available online as a fillable document)1;
  • “Glossy” annual reports to security holders (including when required to be filed by foreign private issuers on Form 6-K)2;
  • Exchange certifications that a security has been approved for listing and registration;
  • Notices of exempt solicitations and exempt preliminary roll-up communications furnished for the information of the SEC;
  • Certain Form 11-Ks3;
  • Certain Form 6-Ks4;
  • Filings made by certain multilateral development banks; and
  • Documents filed with the SEC pursuant to Section 33 of the Investment Company Act.

SEC filings and submissions must generally be in English. If an electronic filing or submission requires the inclusion of a foreign language document, the document must either be translated into, or (if it is an exhibit or attachment to a filing or submission) summarized in English and submitted in electronic format. Current rules (i) permit the paper submission of an unabridged foreign language document if an English translation or summary has already been provided in an electronic filing or submission, and (ii) require the paper submission of a foreign language version of a foreign government or its political subdivision’s latest annual budget if an English translation of the budget is unavailable and such an exhibit is required by specified forms (Form 18 or Form 18-K). The amendments eliminate paper submission of these types of foreign language documents, and require them to be submitted electronically in an appropriate format that EDGAR supports (currently as PDFs).

The amendments also mandate the use of Inline XBRL for financial statements and accompanying notes required by Form 11-K (annual reports of employee stock purchase, savings and similar plans).

The amendments are effective 30 days after publication in the Federal Register. The requirement to file Form 144 electronically will commence six months from the date of publication in the Federal Register of the SEC’s adoption of a version of the EDGAR Filer Manual addressing updates to Form 144. The SEC expects that it will consider such adoption in September 2022, with publication in the Federal Register thereafter. Form 11-K filers have a three-year transition period after the effective date of the amendments in which to comply with the requirement to submit the financial statements and accompanying notes in Inline XBRL. Other mandated electronic filings will be required six months after the effective date of the amendments.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. A broker-dealer will be able to bulk file Forms 144 simultaneously for multiple clients. In addition, the previous proposal to eliminate the requirement to file Form 144 for the sale of non-reporting company securities has not been adopted; affiliates relying on Rule 144 for such companies will still be required to file a Form 144 in paper.

  2. Proxy rules will continue to require certain registrants to publish their “glossy” annual report on a website other than the SEC’s website. See Exchange Act Rule 14a-16(b) and Exchange Act Release No. 34–56135 (July 26, 2007).

  3. Registrants who satisfy their Form 11-K filing obligations by filing Form 10-K amendments may also file these amendments in paper or electronic format.

  4. Reports/documents submitted under Form 6–K that the foreign private issuer must furnish and make public under home country laws, or under the rules of the home country exchange on which its securities are traded, are currently permitted to be submitted in paper, as long as the report/document is not a press release, is not required to be and has not been distributed to the issuer's security holders, and, if discussing a material event, has already been the subject of a Form 6-K or other SEC filing or EDGAR submission.

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