On November 17, the Securities and Exchange Commission adopted amendments to Regulation S-T to permit the use of electronic signatures in executing documents submitted electronically to the SEC through EDGAR.
Under existing Rule 302 of Regulation S-T, an electronic EDGAR submission is required to include a typed “conformed” signature of the signatory thereto. In addition, the signatory must manually sign the signature page to the electronic filing, with such manual signature serving as an authentication of the typed signature appearing in the EDGAR submission. The filer must retain a copy of the manual signature for a period of five years and be able to furnish a copy to the SEC upon request.
Acknowledging that the COVID-19 pandemic has increased the difficulty associated with obtaining manual signatures, and the improvements in technology and the otherwise widespread use of electronic signatures, the SEC has adopted amendments to Rule 302(b) of Regulation S-T to permit the use of electronic signatures by signatories, if certain conditions are satisfied.
Electronic Signature Standards
Under the amended rules, the EDGAR Filer Manual will require that, in order for a signatory to use an electronic signature, the signing process for the electronic signature must:
- require the signatory to present a physical, logical or digital credential that authenticates the signatory’s identity;
- reasonably provide for non-repudiation of the signature;
- provide that the signature be attached, affixed or otherwise logically associated with the signature page; and
- include a timestamp to record the date and time of the signature.
We expect that the use of popular third party services for electronic signatures, such as DocuSign, will satisfy the applicable SEC requirements.
Initial Manually Signed Attestation
In addition, before a signatory initially uses an electronic signature, the signatory must manually sign a document attesting that the signatory agrees that the use of electronic signatures constitutes the legal equivalent of such individual’s manual signature for purposes of authenticating the signature to any SEC filing. The signatory must maintain the manually signed attestation document for at least seven years after the date of the most recent electronically signed document.
The other requirements of Rule 302, including that the filer retain the signature page for a period of five years, remain unchanged.
The amendments will become effective immediately upon publication in the Federal Register.
The SEC’s adopting release is available here.