Guys read this below about filing:
"All About EDGAR"1 (and Exhibits)
Posted by L&W Capital Markets Group on May 11, 2010
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When is EDGAR awake?
EDGAR accepts electronic filings on weekdays from 6 a.m. to 10 p.m. ET, excluding federal holidays. On these filing days, EDGAR will accept a filing that is fully transmitted before 10 p.m. However, EDGAR goes to sleep at exactly 10 p.m. and may bounce the filing if the transmission is incomplete when the clock strikes 10. If that happens, you would have to wait for EDGAR to wake up again at 6 a.m. As a result, if you have a filing that must occur by 10 p.m., you should push the button no later than 9:45 p.m.
For more background on filing preparation issues, see the EDGAR Filer Help Sheet and the EDGAR Filer Manual (March 2009).
How does EDGAR’s 5:30 p.m. filing cutoff work?
EDGAR filings must occur by 5:30 p.m. ET (when the SEC officially ends its business day) to receive the same-day filing date. Everyone should also know that there are three limited exceptions to the 5:30 p.m. cutoff—more on this point below.
The 5:30 p.m. cutoff has important consequences because it can determine whether an SEC filing is timely, which in turn can affect S-3 eligibility and WKSI status, not to mention investors’ perceptions of an issuer.
A filing transmission that begins before 5:30 p.m. is deemed filed on that same day.
A filing transmission that begins after 5:30 p.m. will be deemed filed on the next business day (when the filing will also become publicly available online)—even though EDGAR has accepted the filing and the document is publicly available online through the EDGAR system.
See Rule 13(a) of Reg ST. For example, if an accelerated filer with a December 31 year-end pushed the button on the EDGAR filing of its annual report on Form 10-K at 5:31 p.m. on the March 16, 2009 deadline, EDGAR would accept the filing on March 16, but the filing date of the 10-K would be March 17. Or, simply put, a day late (and a dollar short).
Three types of filings are not subject to the 5:30 p.m. cutoff and will receive a filing date identical to the received date up to 10 p.m. These three exceptions are:
immediately effective registration statements or post-effective amendments filed to register additional securities under Rule 462(b), used when a deal is upsized;
Section 16 beneficial ownership reports on Forms 3, 4 and 5; and
correspondence filings (e.g., comment response letters and requests for acceleration of effectiveness).
See Rule 13(a)(3) of Reg S-T; Release No. 33-7168 text accompanying note 29 (discussing Rule 462(b) registration statements); Release No. 33-8230 text accompanying note 95 (discussing Forms 3, 4 and 5); Index to Forms § 3.2 at 317 (identifying each of the 18 EDGAR submission types within these three categories).
Again, remember that filings must be completed to meet the 10 p.m. cutoff, whereas they need only be initiated to meet the 5:30 p.m. cutoff.
How quickly do completed EDGAR filings appear on the SEC website?
Between 6 a.m. and 5:30 p.m., EDGAR filings other than correspondence appear on the SEC website almost immediately after electronic acceptance. Occasionally, in times of heavy filing volume, there is a minor delay (usually a matter of minutes) between the acceptance on EDGAR and posting on the website. Although a filing transmission that begins after 5:30 p.m. will be accepted by EDGAR, the filing will not be publicly available online through the EDGAR system until 6:00 a.m. the next business day, which will also be the official date of the filing.
EDGAR correspondence filings are not posted on the SEC website until weeks after the fact. Correspondence is publicly released on EDGAR not less than 45 days after the staff has completed its related review of an issuer’s filings. See Press Releases 2004-89 and 2005-72.
Exhibits
Redacting Personal Information in Exhibits
An issuer is preparing to file a material agreement as an exhibit to a periodic or current report. A schedule to the agreement includes personal identifying information (e.g., social security numbers, tax identification numbers, bank account numbers and unpublished telephone numbers or e-mail addresses). For obvious privacy and fraud protection reasons, the affected individuals do not want this personal information to become publicly available on EDGAR. Must the issuer submit a confidential treatment request (CTR) to avoid disclosing this information?
No. This type of sensitive personal data should not be included in an SEC filing, and an issuer does not have to file a CTR in order to avoid disclosing this type of personal identifying information. Cf. Release No. 33-7424 (revising SEC forms to remove the requirement that natural persons furnish social security numbers). Market practice is to replace highly sensitive personal identifying information (e.g., a SSN or bank account number) with a “#” sign for each redacted number or letter. For example, a social security number could be indicated in the filing as ### - ## - ####.
Bear in mind that a filing on EDGAR may be picked up by services that take EDGAR data and repackage it, so sensitive personal data can spread well beyond the SEC’s website. It is always a good idea to watch for sensitive personal identifying information in filings. If you discover that this type of information has mistakenly been included in a filing, we need to talk.
Exhibits to Exhibits
In the above example, rather than replacing the digits with “#” signs, can the issuer just omit the schedule from the agreement that is filed as an exhibit?
The SEC Staff currently takes the position that agreements filed as exhibits on EDGAR cannot omit attached schedules or exhibits (i.e., “exhibits to exhibits”). If, in connection with the Staff’s review of an issuer’s SEC filings, the SEC Staff notices that an exhibit or schedule is omitted from an agreement filed on EDGAR, the Staff’s may issue a comment instructing the issuer to file the omitted portion of the exhibit or explain why the omitted portion need not be filed. The staff’s position here is analogous to S-K Item 601(a)(4), which literally requires the filing of any amendment, however immaterial, to material agreements or other similar exhibits.
One circumstance where an issuer may be able to omit exhibits to an exhibit is under SK Item 601(b)(2) relating to a plan of acquisition, reorganization or the like. Item 601(b)(2) covers any “material plan of acquisition, disposition, reorganization, readjustment, succession, liquidation or arrangement.” Unlike SK Item 601(b)(10), covering material agreements, Item 601(b)(2) expressly permits the omission of “schedules (or similar attachments)” unless the schedules contain information that is material to an investment decision and not otherwise disclosed in the agreement or the related SEC disclosure document. Where schedules or attachments are omitted under Item 601(b)(2), the filing must briefly identify the contents of all omitted schedules and indicate that a copy of any omitted schedule will be furnished supplementally to the SEC upon request.
Unless Item 601(b)(2) applies, the issuer would likely have a difficult time justifying the wholesale omission of an exhibit to an exhibit. However, the issuer could selectively redact information whose disclosure would result in competitive harm to the issuer and concurrently submit a CTR to the SEC Staff. See SLB 1 (providing a detailed description of the CTR process). Finally, despite the SEC Staff position that exhibits to exhibits must be included with any required exhibit filing, if you look on EDGAR you can certainly find commercially sensitive exhibits—presumably containing no information that would be material to an investment decision—missing from material agreements that have been filed on EDGAR. The same can be said of immaterial amendments to material agreements, despite SK Item 601(a)(4).
1. With apologies to Bette Davis and Joseph L. Mankiewicz.
Tags: EDGAR, Exhibits
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