A Small Entity Compliance Guide[*]

Introduction

On June 2, 2022, the Securities and Exchange Commission (the “Commission”) adopted amendments to its rules governing the electronic filing and submission of documents. The amendments will mandate the electronic filing or submission of various forms and documents that previously were permitted or required to be filed in paper. The amendments will also require the use of Inline eXtensible Business Reporting Language (“Inline XBRL”) for the filing of the financial statements and accompanying notes to the financial statements required in the annual reports of employee stock purchase, savings and similar plans.

Who is affected by the amendments?

The amendments affect filers who file or submit to the Commission:

• “glossy” annual reports to shareholders, furnished pursuant to Rule 14a-3(c) or Rule 14c-3(b) under the Securities Exchange Act of 1934 (the “Exchange Act”), or under the requirements of Form 10–K for filers reporting pursuant to Section 15(d) of the Exchange Act, or by foreign private issuers on Form 6–K pursuant to Exchange Act Rules 13a-16 or 15d-16;
• notices of exempt solicitation furnished pursuant to Exchange Act Rule 4a-6(g) and notices of exempt preliminary roll-up communications pursuant to Exchange Act Rule 14a-6(n);
• annual reports for employee benefit plans on Form 11-K;
• notices of proposed sale of securities on Form 144 where the issuer of the securities is subject to the reporting requirements under Section 13 or 15(d) of the Exchange Act;
• certain reports or other documents submitted by a foreign private issuer under cover of Form 6–K; and
• documents filed pursuant to section 33 of the Investment Company Act of 1940.

What are the key changes made to the rules and forms?

The amendments mandate the electronic filing or submission of the documents identified above. This means, among other things, that registrants that are required to submit to the Commission their “glossy” annual report to security holders will be required to do so via an electronic submission on EDGAR, in accordance with the EDGAR Filer Manual. Registrants will no longer have the option to furnish to the Commission paper copies of these reports.

In addition, the amendments will require all Forms 144 for the sale of securities of reporting companies to be filed electronically on EDGAR, rather than through a paper filing. Form 144 will be an online fillable document and will delete certain personally identifiable information in the form. The amendments will also eliminate the requirement that a copy of the Form 144 be sent to the principal exchange on which the securities are admitted to trading. The amended rules do not apply to Form 144 filings relating to the sale of non-reporting companies; as a result, affiliates of non-reporting companies relying on Rule 144 will continue to be required to file Form 144 in paper to report their sales of those securities.

The amendments also will mandate the use of Inline XBRL for the filing of financial statements and accompanying notes to the financial statements required in the annual reports for employee benefit plans on Form 11-K.

Refer to the adopting release for a complete description of all amendments.

What are the compliance dates of the amendments?

The amendments are effective on July 11, 2022, with the following compliance dates:

• Beginning January 11, 2023 filers will be required to file or submit electronically, including:
  • “glossy” annual reports to security holders (in PDF),
  • notices of exempt solicitations and exempt preliminary roll-up communications, and
  • reports or other documents submitted by a foreign private issuer under cover of Form 6-K.
• Beginning six months from the date of publication in the Federal Register of the Commission release that adopts the version of the EDGAR Filer Manual addressing updates to Form 144, filers will be required to file Form 144 electronically on EDGAR when the form relates to proposed sales of securities of reporting issuers. We currently expect that the Commission will consider adoption of the relevant version of the EDGAR Filer Manual addressing updates to Form 144 in September 2022, and publication in the Federal Register would occur thereafter.
• Beginning July 11, 2025, filers will be required to comply with the requirement to submit the financial statements and accompanying notes to the financial statements required by Form 11-K in Inline XBRL.

Other Resources

The adopting release for the amendments can be found on the Commission’s website at https://www.sec.gov/rules/final/2022/33-11070.pdf

Contacting the Commission Staff

The Commission’s Division of Corporation Finance is happy to assist small companies and others with questions regarding the amendments. You may contact the Division for this purpose at (202) 551-3440 or at https://www.sec.gov/forms/corp_fin_interpretive.

Questions on other Commission regulatory matters concerning smaller reporting companies may be directed to the Division’s Office of Small Business Policy at (202) 551-3460.

[*] This guide, dated as of June 29. 2022, was prepared by the staff of the Commission as a “small entity compliance guide” under Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996, as amended. This guide summarizes and explains rules adopted by the Commission, but is not a substitute for the rule itself. Only the rule itself can provide complete and definitive information regarding its requirements.