The SEC recently adopted a rule change to allow for the use of electronic signatures for documents filed with the Commission. This rule change will apply to Regulation S-T, EDGAR Filer Manual, and certain other filings under the Securities Acts of 1933 and 1934 and the Investment Company Act of 1940. This long-awaited rule change was finally put into effect after the rise of COVID-19 and after the Commission received a rule making petition regarding the use of electronic signatures as the pandemic made it significantly more difficult to obtain “wet” signatures, as was originally required by Rule 302(b). Besides adding the option to use electronic signatures, the existing requirements of Rule 302(b) will be otherwise unchanged.
Regulation S-T and EDGAR
The rule change will require each signatory to an electronic filing to manually sign an authentication document before or at the time of the electronic filing to authenticate, acknowledge, or otherwise adopt the signature that appears in typed form within the electronic filing. It will also require an electronic filer to retain the authentication document with respect to each signatory to the electronic filing for a period of five years and must furnish a copy of it to the Commission or its staff upon request.
The SEC also lists the requirements for the electronic signature signing process in the EDGAR Filer Manual, which will specify that, when a signatory signs an authentication document using an electronic signature, the signing process for the electronic signature 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 that the signature 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.
The filings on EDGAR that this rule change will affect are as listed:
- Securities Act
- Securities Act Rule 402 and 471
- Regulation S-T
- Rule 301 and 302
- Exchange Act
- Exchange Act Rule 12b-11,14d-1, 15Fb1-1, 16a-3, and Form CB
- Investment Company Act
- Investment Company Act Rule 8b-11
Securities Acts and Investment Company Act
The rule change will affect these acts a little differently by amending certain rules and forms allow the use of electronic signatures in authentication documents in connection with certain other filings when these filings contain typed, rather than manual, signatures.
The sections that this rule change will affect are as listed:
- Securities Act of 1933
- Sections 6, 7, 8, 10, and 19(a)
- Securities Exchange Act of 1934
- Sections 3, 12, 13, 14, 15, 15B, 23, and 35A
- Trust Indenture Act of 1939
- Section 319
- Investment Company Act of 1940
- Sections 8, 30, 31, and 38
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