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Final Rule:
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 | removing subparagraph (4) from paragraph (b) (the voluntary EDGAR
filing paragraph); and
|
| adding a reference to forms filed under Section 16(a) to subparagraph (a)(1)(iii) (located in the mandated EDGAR filing paragraph). |
Regulation S-T also requires the electronic filing of any related correspondence and supplemental information pertaining to a document that is the subject of mandated EDGAR.46 These materials are not disseminated publicly but are available to the Commission staff. This requirement will apply to persons who file Forms 3, 4 and 5 on or after the effective date of the amendments.
B. Required Website Posting of Forms 3, 4 and 5
We also are adopting as proposed the amendment to Rule 16a-347 to add a new paragraph (k) to require an issuer that maintains a corporate website to post on its website all Forms 3, 4 and 5 filed with respect to its equity securities by the end of the business day after filing. One commenter asked us to clarify the term "corporate website," stating that the term does not distinguish between public (internet) and private (intranet) sites. We clarify that the term "corporate website" refers to public (internet) sites, reflecting the legislative purpose of providing broader dissemination of this information to investors.
As we stated in the Proposing Release, an issuer can satisfy this requirement whether it provides access directly or by hyperlinking48 to reports via a third-party service instead of maintaining the forms itself if the following conditions are met: 49
| the forms are made available in the required time frame;
|
| access to the reports is free of charge to the user;
|
| the display format allows retrieval of all information in the forms;50
|
| the medium to access the forms is not so burdensome that the intended
users cannot effectively access the information provided;51
|
| the access includes any exhibits or attachments;
|
| access to the forms is through the issuer website address the issuer
normally uses for disseminating information to investors;52
and
|
| any hyperlink is directly to the Section 16 forms (or to a list of the Section 16 forms) relating to the posting issuer instead of just to the home page or general search page of the third-party service.53 |
Three commenters addressed where hyperlinks must lead. Two of the commenters urged that we not require a hyperlink to each individual Section 16 form because such a requirement would be unduly burdensome. The third commenter asked whether the hyperlink could be to a site with all Commission filings related to the issuer or whether it had to be to a site that contained only Section 16 forms or a list of them. As stated in the list of conditions above, the hyperlink must lead directly to the Section 16 forms or to a list of them. It is possible, for example, to link to the Section 16 forms relating to an issuer in the EDGAR database on our website in a manner that does not require an update each time another Section 16 form is filed as to that issuer.54
Two commenters addressed hyperlink captions. One of these commenters asked how specific the caption should be and the other suggested that we clarify that the link must be displayed clearly. We clarify that the link caption must indicate clearly that the link leads to the issuer's insiders' Section 16 forms.
Two commenters questioned whether an issuer always could post Section 16 filings by the end of the business day after filing. The commenters noted that, even where an insider complies with the Rule 16a-3(e)55 requirement to send or deliver a duplicate of a Section 16 form to the issuer not later than the time the form is transmitted for filing with the Commission, the issuer still may receive the filing after the website posting deadline, for example when the insider sends the form by certified mail. We recognize that issuers may need to coordinate more closely with their insiders to avoid this concern, but that such coordination may not always be practicable, particularly with more than 10% beneficial owners.
Rule 16a-3(e) requires the insider to send or deliver the duplicate to the person designated by the issuer to receive such statements, or, in the absence of such designation, to the issuer's corporate secretary or person performing equivalent functions. In making this designation, we would expect an issuer also to designate an electronic transmission medium compatible with the issuer's own systems, so that a form sent via that medium at the time specified by Rule 16a-3(e) would be received by the issuer in time to satisfy the website posting deadline. To assure that insiders are aware of the designated person and electronic transmission medium, we encourage issuers to post this information on their websites together with the Section 16 filings. Of course, issuers also may consult EDGAR to obtain notice of new filings. We also note that the concern about obtaining an electronic copy of the filing would not arise for issuers that rely on a hyperlink (for example, to EDGAR) instead of, or in addition to, direct website posting.
Two commenters addressed posting duration. One favored a one-year period and the other favored at least a one-year period (noting that we might want to lengthen the period to allow investors to spot trends). As adopted, Rule 16a-3(k) requires each form to remain accessible on the issuer's website for at least a 12-month period. We believe that a 12-month period that begins when the form is posted strikes the right balance between the issuer effort needed to post and the investor benefit from having access to the Section 16 forms through the additional source of the issuer's website. In this regard, we note that the Section 16 forms will be available indefinitely in the EDGAR database on our website.
One commenter addressed rule-mandated Form 3 posting in the absence of a statutory requirement. The commenter favored our proposal to mandate Form 3 posting on the basis that it would provide timely and complete disclosure regarding initial ownership positions and, therefore, prove useful in assessing changes. We also conclude that mandated posting of Form 3 is appropriate. We believe that the benefits of wider dissemination of the fact that a person is an insider and that person's initial ownership will outweigh the marginal additional effort required to post these forms. Accordingly, we adopt this requirement as proposed.
The website posting requirement will become effective at the same time as the electronic filing requirement. However, we continue to encourage issuers to post Section 16(a) reports on their websites before the implementation date.
The Commission is modifying proposed Rule 16a-3(k) with respect to investment companies.56 One commenter noted that a website that contains information about an investment company typically would be maintained by a separate entity, such as its investment adviser, and recommended that we tailor the rule to reflect this. We agree that this is appropriate and are modifying Rule 16a-3(k) to clarify that the requirement to post Forms 3, 4, and 5 applies to an investment company that does not maintain its own website if the company's investment adviser, sponsor, depositor, trustee, administrator, principal underwriter, or any affiliated person of the investment company maintains a website that includes the name of the investment company. If there is more than one such website, the investment company would be required to post its Forms 3, 4, and 5 on one such website. We would expect the investment company to use the same website to post all of its Forms 3, 4 and 5.
C. Rule 16a-3(h)
As proposed, we are deleting as no longer necessary the deemed timely filed provision in Rule 16a-3(h) under the Exchange Act, effective at the same time the Forms 3, 4 and 5 electronic filing requirement becomes effective. Rule 16a-3(h) will continue to state that the date of filing is the date of receipt by the Commission.57 The deletion applies only to the rule's provision that a Form 3, 4 or 5 will be deemed timely filed if the filing person establishes that the form was timely delivered to a third party entity providing delivery services in the ordinary course of business that guaranteed delivery of the filing to the Commission no later than the required filing date. Because the "deemed timely filed" provision was designed for and applies only to paper filings, we believe it no longer will be needed once the electronic filing requirement is effective.
One commenter suggested that we retain the "deemed timely filed" provision for guaranteed electronic filings, reasoning that a filer should not be considered delinquent when a third-party service provider fails to fulfill its filing guarantee. We believe, however, that in light of the improvements to EDGAR for Section 16 form filing discussed below, electronic filing can be readily accomplished and there will be no need for the "deemed timely filed" provision in the electronic context.
D. Hardship Exemptions and Adjustments of Filing Dates
Rules 201 and 202 of Regulation S-T58 address hardship exemptions from EDGAR filing requirements and Rule 13(b) of Regulation S-T59 addresses the related issue of filing date adjustments.
A filer may obtain a temporary hardship exemption under Rule 201 if it experiences unanticipated technical difficulties that prevent the timely preparation and submission of an electronic filing by filing a properly legended paper copy60 of the filing under cover of Form TH.61 A filer who files in paper under the temporary hardship exemption must submit an electronic format copy of the filed paper document within six business days of the filing of the paper format document.62
A filer may apply for a continuing hardship exemption under Rule 202 if it cannot file all or part of a filing without undue burden or expense.63 In contrast to the self-executing temporary hardship exemption process, a filer can obtain a continuing hardship exemption only by submitting a written application, upon which the Commission staff must then act under delegated authority.
Instead of pursuing a hardship exemption, a filer may request a filing date adjustment under Rule 13(b) of Regulation S-T.64 This rule addresses circumstances where an electronic filer attempts in good faith to file a document with the Commission in a timely manner but the filing is delayed due to technical difficulties beyond the filer's control. In those instances, the filer may request an adjustment of the document's filing date. The staff may grant the request if it appears that the adjustment is appropriate and consistent with the public interest and the protection of investors.
In the Proposing Release, we asked questions regarding temporary hardship exemptions relating to whether to shorten electronic follow-up periods or, alternatively, eliminate the ability to use the temporary hardship exemption for Section 16 filings. Three commenters addressed hardship exemptions, urging us to keep the temporary hardship exemption available for Section 16 filings to accommodate the infrequent, deserving circumstances that arise or to adopt a tolerant attitude toward hardship exemption availability at least during the first 12 months of mandated electronic filing of Section 16 forms.
After considering these comments, we have nonetheless decided to amend Rule 201(a) of Regulation S-T to make temporary hardship exemptions unavailable to Forms 3, 4 and 5 for the following reasons:
| the relative ease of using the new on-line filing system;
|
| the extended 10 p.m. Eastern time filing deadline;65
|
| the limited value to the public of paper filings; and
|
| the availability of a filing date adjustment under the same circumstances a temporary hardship exemption would have been available. |
We agree with the commenters that relief should be available when appropriate circumstances arise, no matter how infrequent. We believe, however, that this relief will be more appropriate if provided through a filing date adjustment rather than through a temporary hardship exemption. The temporary hardship exemption is best suited for use in connection with a transactional filing that must reach the Commission on a specific date in order for some action to be taken. For example, if a company must file a pre-effective amendment to a Securities Act registration statement in order to request immediate acceleration of effectiveness, technical difficulties may justify filing the registration statement in paper under a temporary hardship exemption. In contrast, when the filing is a Section 16 form, the public would be better served by having the document in electronic format. We believe an electronic Section 16 form is likely to arrive sooner where a filing date adjustment is used than it would were it to come in as a confirming copy after a temporary hardship exemption was used.
Filing date adjustments, as would have been true of temporary hardship exemptions, should be few in number given the relative brevity of Section 16 forms, the relative ease of electronically filing them through EDGAR's new on-line feature and the strong interest in timely and readily available disclosure of Section 16 forms. A failure to obtain timely an identification number or access codes will not justify a filing date adjustment.66 Moreover, as is also the case with other forms required to be filed on EDGAR, upon effectiveness of the rules we adopt today, our filing desk will not accept in paper format any Form 3, 4 or 567 except in the highly unlikely event that the filing satisfies the requirements for a continuing hardship exemption under Regulation S-T.68 A filing date adjustment will, however, be available in appropriate circumstances.69
E. Item 405 of Regulation S-K
Recognizing that insiders may experience temporary difficulties in transitioning to mandated electronic filing, one commenter suggested that we provide issuers limited, temporary relief from disclosing Section 16 reporting delinquencies pursuant to Item 405 of Regulations S-K and S-B.70 This disclosure is required in the issuer's proxy or information statement,71 for the annual meeting at which directors are elected, and its Form 10-K72, 10-KSB73 or N-SAR74. We are persuaded that temporary limited relief from Item 405 disclosure is appropriate for a Form 4 that is:
| filed not later than one business day following the regular due date,
and
|
| filed during the first 12 months following the effective date of mandated electronic filing. |
We believe that this temporary relief will be helpful to issuers and insiders, without removing issuers' incentive to assist insiders with timely filing. Eligibility for this disclosure relief does not change the fact that any Form 3, 4 or 5 filed later than the applicable due date violates Section 16(a).
F. Forms 3, 4 and 5
We are adopting with minor revisions the proposed amendments to Forms 3, 4 and 5 mainly to facilitate the electronic filing provisions, as follows:
- Amend the introductory section before the General Instructions of
Forms 3, 4 and 5 to delete the reference to IRS identification numbers.
Consistent with that deletion, we amend each of the forms to delete Item 3
(before Table I), which provides a space for a filer that is an entity, at
its option, to include an IRS identification number.75
We believe this information is unnecessary in this context. An IRS
identification number has not proved useful for tracking because only some
filers provide it. Only non-natural person filers have been permitted to
provide it and even they could choose whether to do so.
- Amend the General Instructions to Forms 3, 4 and 5 to
 | delete the references to the deemed timely filed provision in Rule
16a-3(h);76
|
| delete the statement that electronic filing is optional;77
|
| add a statement clarifying that electronic filing is mandatory
absent a hardship exemption, referencing Regulation S-T, and describing
how to obtain staff assistance in electronic filing;78
|
| revise the joint filer provisions to cross-reference the
signature rule and separate out paper-only requirements;79and
|
| add a note providing instructions for filing in paper pursuant to a hardship exemption.80 |
G. Form ET
We are making one change to the EDGAR system and the rules that affects all filings, not just Section 16(a) reports. Electronic filers have been permitted to make electronic submissions either as direct transmissions, via dial-up modem or Internet, or on magnetic cartridge.88 However, the number of filers using magnetic cartridges is minimal. In the current calendar year, no filer has used magnetic cartridge transmission. During 2002, one filer filed one magnetic cartridge containing a single form. The filer apparently used the magnetic cartridge approach solely to avoid a temporary problem with direct transmission. Therefore, as proposed, we are eliminating89 magnetic cartridges as a transmission medium and Form ET,90 the transmittal form that must accompany all magnetic cartridge submissions.91
H. Filing Hours
Rule 13(a) of Regulation S-T addresses electronic submission acceptance. Currently, persons can file by direct electronic transmission between the hours of 8 a.m. and 10:00 p.m., Washington, DC time on weekdays that are not federal holidays. An accepted filing for which transmission begins before 5:30 p.m. Eastern time is deemed filed on the same day. Generally, an accepted filing that begins after 5:30 p.m. is deemed filed on the next business day.92 However, a post-effective amendment or registration statement filed to increase the number of securities registered as permitted by Securities Act Rule 462(b)93 is deemed filed on the same business day (as long as it is received before 10 p.m.).94
In the Proposing Release, we requested comment on amending Rule 13(a) to treat an accepted Form 3, 4 or 5 filing in the same manner as a Rule 462(b) filing for purposes of the deemed filing date. More commenters addressed filing hours than anything else. Eleven commenters supported the extension to 10 p.m. Two of those commenters also expressed support for an extension to midnight. Finally, four commenters expressed support for the ability to file 24 hours a day.
The commenters supporting a Rule 462(b) type extension to 10 p.m. or midnight generally took the view that
| the extension would ease administrative burdens, especially for filers
that are natural persons or located in the western part of the U.S.,
particularly in light of the rapid Form 4 filing deadline; and
|
| form dissemination still would occur no later than before the market opens the next business day, as is currently true for forms filed after market close but before 5:30 p.m. on a business day. |
Commenters supporting 24-hour-a-day filing cited essentially the same views. In addition, two commenters stated their belief that the Commission would not need to be open 24 hours a day because forms filed when the Commission was closed could be held in a queue until re-opening. One commenter added its belief that the Commission should be able to perform maintenance and back-up without disrupting 24 hour-a-day filing.
We agree that extended filing hours would ease filers' administrative burdens, without impairing prompt public availability of the filed information. Accordingly, we have amended Rule 13(a) to provide that any Form 3, 4 or 5 submitted by direct transmission on or before 10 p.m. Eastern time is deemed filed on the same business day.95 However, filer support hours will not be correspondingly extended, so filer support will remain available only until 7:00 p.m. Eastern time. We encourage filers to submit their filings as early in the day as practicable, notwithstanding the 10 p.m. deadline, to avoid the risk that last-minute difficulties will result in a late filing.
The EDGAR system will be programmed to provide that a form filed between 5:30 p.m. and 10:00 p.m. Eastern time is assigned a filing date on the same business day and disseminated that evening. We expect this programming to be completed around the end of July 2003. Until then, EDGAR will continue to assign the next business day to these filings as their filing date and disseminate them on the next business day. However, from the effective date of the amendments until the programming is completed, we will apply amended Rule 13(a) to consider a Form 3, 4 or 5 to be timely filed based on the time of receipt displayed on our website. A form with a time of receipt on or before 10 p.m. will be deemed to be filed on the date of receipt.
III. THE NEW ELECTRONIC FILING SYSTEM
The Proposing Release discussed our plans for a new on-line filing system to make it easier to file Forms 3, 4 and 5 and easier to locate and search for the data in these forms. In March 2003, the Commission made the new system available for testing. In its initial version, insiders and those who acted on their behalf were able to access our website to fill out and submit test forms. On May 5, 2003, EDGAR Release 8.5 became effective and the new system went live and began to provide the method for insiders to file electronically.96 As a result, EDGARLink filing no longer is available for these forms.97
Users of the test site commented that the new system was easy to use and intuitive. They identified some improvements that would be beneficial to filers. Most of these changes will be implemented in EDGAR Release 8.6, currently scheduled for the end of July.98
Some filers, either directly or through agents, may wish to create a customized form and file it as a reduced content filing. A reduced content filing is a filing that provides header information (e.g., form type) and the data for mandatory fields that we specify and otherwise complies with specified technical filing requirements. In March 2003, we announced the necessary reduced content specifications, including, mandatory fields and technical filing requirements, to provide adequate preparation time before the new system's implementation.99 Reduced content filings will enable issuers and insiders to use third-party service providers for filings, if they wish to do so, just as they do today.
In order to file, persons will need the same codes as are required to file on EDGARLink. Persons can acquire the codes only by submitting a Form ID.100 We urge Form ID filers to keep the information they provide up to date by revising the information on-line through our website as necessary. Companies and other third party filing agents with appropriate access codes will continue to be able to submit forms on behalf of insiders.101 We expect to introduce enhanced verification procedures in the future.
Under the new system, if a filing is made on behalf of multiple insiders, each insider will be required to have a Central Index Key (CIK) and CIK Confirmation Code (CCC) for validation.102 Multiple insiders will be allowed to report on a single form only if they all have an interest in a transaction or holding reported.
To access and file the forms through our website, filers must begin by having valid EDGAR access codes and logging on to the site. A button on the menu will give filers the option to create an on-line Form 3, 4 or 5, or an amendment to any of these forms. The filer should have all the necessary information available before going on-line to file. Due to cost and technical limitations, data entry must be performed quickly enough to avoid time-outs that end the session. A time-out will occur one hour following the user's last activity on the system. The system will not be able to provide a way to save an incomplete form on-line from session to session. The system will validate as many fields as possible for data type and required fields while the filer fills in the form. Filers will have the chance to correct errors and verify the accuracy of the information before submitting the filing. An on-line help function will be available.
The filer will be able to download and print the filing and add attachments before submission.103 Once the filing is submitted, the system will display the accession number of the filing or a message that says the accession number will follow in a return notification.104 A filer will be able to obtain a return copy of the form shortly after filing, and also will be able to see the filing on our website. Filers who submit their forms directly by entering information into the on-line templates must click on the "Transmit Submission" button on or before 10:00 p.m. Eastern time on a Commission business day for the submission to be completed that day. Similarly, a reduced content filing must begin transmission on or before 10:00 p.m. Eastern time to be completed the same day.
Summarized below are comments we received regarding the system relating to access codes, filing options and system features, and our responses.
Four commenters asked us to address the situation where a Form ID is filed to obtain a new CCC access code for an insider who already has a CCC code. Two commenters stated that this can happen, for example, where an insider serves on multiple boards and more than one issuer arranges Form ID filing. The situation cited is that a new CCC is issued, which cancels the previous CCC. As a result, an attempt to file arranged by a person unaware of the change could result in an error message, delay and extra effort. As potential alternative resolutions, commenters suggested that the Commission:
| in response to a repeat Form ID, either provide the existing codes and
permission to use them or return the Form ID to the insider with a notice
that the insider already has access codes;
|
| provide a mechanism to allow filers to determine whether the insider
already has access codes;105
|
| provide separate access code sets with respect to each issuer as to
which the person files reports;106
or
|
| take the position that a good faith attempt to obtain and use codes that results in mishandling or termination of existing codes constitutes a valid basis for a temporary hardship exemption.107 |
We are sensitive to the concerns expressed regarding granting access codes to individuals. In some cases, an individual is an insider of more than one issuer. The staff takes care to assign only one CIK code to each individual, regardless of the number of issuers as to which the person files reports. When multiple issuers request CIK codes for the same individual, however, occasionally new access codes are assigned in error. Often one issuer tells the staff that the original codes have been lost or compromised when, in fact, the insider is using them when submitting filings as to another issuer. When new codes are generated for the same person, as identified by the unique CIK code, the previously generated codes become invalid.
We are exploring potential methods for the system to identify uniquely each insider and enable an insider, or an issuer or other third party acting on the insider's behalf, to manage the access codes more effectively and arrange new access codes, if necessary, on a real-time basis. Ultimately, we may address the situation even more broadly (i.e., not only in the context of Section 16 filings). For the time being, however, we urge
| insiders to file Forms ID well in advance of when they expect to need
codes, to keep track of their codes and to advise issuers for which they
later become insiders of their existing codes; and
|
| issuers and other third parties involved in the filing process to inquire whether an insider already has codes before submitting a Form ID filing on the insider's behalf.108 |
Five commenters addressed alternatives to limiting electronic filing of insider reports to the new on-line system. All five commenters suggested that insiders remain able to file through the current EDGARLink system during at least the initial few months of the new on-line system. Among their reasons were to provide more time for third-party software development, facilitate a smoother transition and enable filers to prepare a submission in advance (and thereby ease proofreading).
We have considered the commenters' suggestions and concerns regarding alternate methods of filing. However, due to technical and resource limitations, we cannot maintain parallel systems, such as EDGARLink and the new on-line system.
A significant number of commenters addressed the operation of the new on-line system. They addressed input features generally, the relationship between reduced content filings and on-line filing, and technical issues regarding data format and tagging.
Commenters suggested input features that are user-friendly in general and, in particular, allow users to
| save incomplete forms for the next on-line session;
|
| complete forms off-line and file them on-line;
|
| use an unlimited number of lines in each transaction table;
|
| receive a warning before a time-out;
|
| avoid separately converting attachments into an EDGAR format;
|
| avoid the need to input data manually into fields automatically
populated based on, for an initial report, information in the Form ID and,
for a subsequent report, information in the last previous report;
|
| access instructions from the related part of the on-line template; and
|
| use pull-down menus for a variety of items. |
The system allows users to avoid separately converting attachments into an EDGAR form109 and allows users to use pull-down menus in responding to some items. As the Commission staff and filers develop operational experience with the on-line filing system, we plan to consider whether pull-down menus would be feasible for additional items.
Due to cost and storage limitations, the system currently does not allow users to:
| save incomplete forms for the next on-line session (but the system
does allow users to print their incomplete forms and, thereby, retain a
hard copy);
|
| complete forms off-line and file them on-line except by using a third
party or other reduced content filing process;
|
| use an unlimited number of lines in each transaction table (but we
believe the number of lines available adequate);
|
| receive a warning before a time-out;
|
| avoid the need to input data manually into fields automatically
populated based on, for a Form 4 or Form 5, information in the last
previous report (but some fields will be populated automatically based on
information in the Form ID (e.g., the insider's name)); or
|
| access instructions from the related part of the on-line template. |
We plan to consider these features and other improvements in connection with potential future system enhancements. We encourage system users to continue to provide their comments and suggestions to the staff.
Six commenters asked questions or cited concerns about data tagging and the format selected for information filed and displayed. The system requires that information be filed in the standard format of XML. We will disseminate that information on our website in two formats - viewable through a form and XML tagged. Users can take the XML tagged information and download it into an existing application or create an application to use the information. We believe that our approach to filing and dissemination formats makes it relatively easy to file, access and analyze insider beneficial ownership information.
Some commenters requested that we put Forms 3, 4 and 5 and their amendments in a separate area of our website. They stated that this would provide easy access to the information for members of the public interested in these forms. We believe that the same effect has been accomplished by providing the ability on our website to make a search limited to these forms, as well as the ability to search for company filings excluding these forms.110
IV. PAPERWORK REDUCTION ACT
The amendments contain "collection of information" requirements within the meaning of the Paperwork Reduction Act of 1995 ("PRA").111 We published a notice requesting comment on the collection of information requirements in the Proposing Release, and submitted these requirements to the Office of Management and Budget ("OMB") for review.112 These requests are pending before the OMB. When we receive OMB clearance, we will publish notice in the Federal Register. We did not receive any comments on the Paperwork Reduction Act analysis contained in the Proposing Release.
Consistent with the will of Congress, the amendments that affect all of these information collections, except for Form ET, generally conform the amended rules and forms to the mandated electronic filing requirements provided by the amendments to Section 16(a) enacted in Section 403 of the Sarbanes-Oxley Act.
Compliance with the adopted amendments will be mandatory. The information required by the amendments will not be kept confidential by the Commission except that the information required by Form ID will be kept confidential, subject to a request under the Freedom of Information Act.113
An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a currently valid OMB control number. The titles of the affected information collections are the EDGAR Forms ID, ET, SE and TH, and Exchange Act Forms 3, 4 and 5. The changes made to the proposed amendments would not increase the burden estimates for Forms ID, ET, SE and TH previously submitted to the OMB.114 We expect that the adopted amendments will obligate reporting persons to disclose on Forms 3, 4 and 5 essentially the same information that they are required to disclose today.115
V. COST-BENEFIT ANALYSIS
The adopted amendments relating to mandated electronic filing and website posting largely represent the implementation of a Congressional mandate. As we stated in the Proposing Release, we expect these amendments will achieve the same benefits for investors and filers that we sought when we first adopted mandated EDGAR rules for most filings.116
We solicited comment on the expected benefits and costs and on any others that could result from adoption of mandated electronic filing and website posting requirements. We also requested data as to what percentage of filings are done by or with the help of the issuer. We discuss the responses below.
A. Benefits
We expect the adopted amendments regarding mandated electronic filing and website posting to benefit investors and filers.
Mandated electronic filing should benefit members of the investing public and financial community by making information contained in Commission filings easily available to them minutes after receipt by the Commission and, thereby, make them more likely to access and act quickly on the information. The electronic format of the information should facilitate research and data analysis. The new accelerated Section 16(a) filing requirement described above should make quick electronic access even more valuable.
Filers should benefit from changes to the electronic filing system specifically designed to make electronic filing easier while continuing to provide speedy, secure and reliable delivery.
The use of EDGAR also will facilitate more efficient storage, retrieval and analysis of ownership and transaction information than filing in paper. Quicker access to ownership and transaction information should not only facilitate review of the information but also enhance the Commission's ability to study and address issues that relate to this information.
Website posting by issuers with corporate websites will provide a convenient, rapidly disseminated electronic source in addition to EDGAR that is conducive to research and data analysis. In general, website posting will help to make ownership and transaction information more broadly accessible.
Of the commenters that expressed support for some or all of the proposed amendments, three cited benefits among those we stated we expected to result. All three commenters cited more timely access to information. Two commenters cited easier access to information. No commenter provided data to quantify the value of benefits identified.
B. Costs
We expect that the adopted amendments regarding mandated electronic filing and website posting will result in some costs to insiders and issuers. However, we expect that many insiders and issuers will not bear the full range of costs resulting from the adoption of these amendments for the reasons described below.
The expected costs of mandated electronic filing consist of both initial and ongoing costs. Initial costs are those associated with obtaining, completing and sending to the Commission a Form ID to obtain filing credentials, and the purchase of compatible computer equipment and software. Initial costs further include those associated with learning about the electronic filing system, placing the filing data in electronic format for the initial electronic filing and subscribing to an Internet service provider. Ongoing costs are those associated with maintaining the framework developed through the initial costs (for example, updating information required by Form ID) and any additional costs arising from each subsequent filing (for example, placing the new filing data in electronic format).117
We expect that many insiders will incur few, if any, additional costs from electronic filing. We understand that many issuers help their insiders or submit the insiders' filings on their behalf. To the extent insiders do not receive this assistance, we believe many already will have the necessary computer equipment and Internet access to enable them to file using the templates that will appear on the Commission's website. Finally, some insiders already have filed Forms ID and gained experience in arranging electronic filing. As previously noted, approximately 38% of the Forms 3, 4 and 5 filed in March 2003 were filed electronically.
Even issuers that help their insiders to file electronically, whether to a greater or lesser extent, are not likely to incur additional costs. These issuers already are required to file on EDGAR and generally have the needed computer equipment and Internet service provider access to enable them to facilitate filing using the templates that will appear on the Commission's website.
Issuers should incur relatively few direct costs from the website posting requirement. Because the requirement applies only to issuers that already have a corporate website, issuers will not need to incur the costs associated with creating or maintaining a website. In addition, issuers could limit their additional costs associated with posting by hyperlinking to a third-party website such as EDGAR.118
Of the commenters expressing concerns in terms of cost or burden, most expressed concern about filing hours. Five commenters essentially stated that a 5:30 p.m. Eastern time filing deadline would be overly burdensome.119 As we noted earlier, we are extending the filing deadline to 10:00 p.m. Eastern time.
Two commenters expressed concern about the burden on issuers that satisfy their website posting requirement by hyperlinks if we require the hyperlinks to be updated with each Section 16 report filing. As we noted earlier, it is possible, for example, to link to the Section 16 reports relating to an issuer in the EDGAR database on our website in a manner that does not require an update each time another Section 16 report is filed as to that issuer.
One commenter stated that a failure to maintain EDGARLink as a filing option once the new system is in place would require third-party software providers to implement the new requirements outside the normal development cycle and, as a result, could place a considerable strain on their resources.120 As we noted earlier, due to technical and resource limitations, we cannot maintain parallel systems.
One commenter suggested that we make minor changes to the current EDGARLink approach rather than provide a new system in order to avoid overly burdensome costs to disseminators. We believe that approach would be inconsistent with our goal of establishing a user-friendly system. One commenter stated that if the new system is not user-friendly, we should not underestimate the costs.
VI. EFFECT ON EFFICIENCY, COMPETITION AND CAPITAL FORMATION
Section 23(a)(2) of the Exchange Act121 requires us, when adopting rules under the Exchange Act, to consider the impact that any new rule would have on competition. In addition, Section 23(a)(2) prohibits us from adopting any rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. Furthermore, Section 2(b) of the Securities Act,122 Section 3(f) of the Exchange Act123 and Section 2(c) of the Investment Company Act require us, when engaging in rulemaking where we are required to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
The adopted amendments regarding mandated electronic filing and website posting are intended to facilitate the more efficient transmission, dissemination, analysis, storage and retrieval of insider ownership and transaction information.124 This should improve investors' ability to make informed investment and voting decisions. Informed investment and voting decisions generally promote market efficiency and capital formation.
In the Proposing Release, we considered the amendments in light of the standards set forth in the above statutory sections. We solicited comment on whether, if adopted, the proposed amendments would impose a burden on competition. We also requested comment on whether, if adopted, the proposed amendments would promote efficiency, competition and capital formation. Finally, we requested commenters to provide empirical data and other factual support for their views if possible.
While several commenters stated that various aspects of the proposed amendments would result in undue burdens, only one commenter addressed anti-competitive effects. According to this commenter, the new on-line filing system would curtail the private sector business that provides software programs that facilitate insider filings. This commenter further asserted that this private sector business would innovate if not given an early disincentive from developing efficient filing systems. We believe that it is very important for insiders to have a user-friendly system that they can use relatively easily to fulfill their filing obligations. We further believe that such a system will not discourage significantly private sector businesses that develop filing software because these businesses can provide features the new on-line system does not.
VII. FINAL REGULATORY FLEXIBILITY ACT ANALYSIS
This Final Regulatory Flexibility Analysis or FRFA, has been prepared in accordance with the Regulatory Flexibility Act.125 This FRFA relates to amendments regarding mandated electronic filing and website posting of Forms 3, 4 and 5.126
A. Need for the Amendments
An issuer's insiders use Forms 3, 4 and 5 to report beneficial ownership of and trading in equity securities of the issuer. Consistent with the will of Congress, the adopted mandated electronic filing and website posting amendments generally conform the amended rules and forms to the mandated electronic filing and website posting requirements provided by the amendments to Section 16(a) enacted in Section 403 of the Sarbanes-Oxley Act. In addition, we believe the proposed amendments will benefit investors, filers and the Commission.
B. Significant Issues Raised by Public Comment
The Initial Regulatory Flexibility Act Analysis ("IRFA") appeared in the Proposing Release. We requested comment on any aspect of the IRFA, including the number of small entities that would be affected by the proposals, the nature of the impact, and how to quantify the impact of the proposals. We received no comment letters responding to the request.
C. Small Entities Subject to the Amendments
The mandated electronic filing and website posting amendments will affect small entities that either are insiders that are not natural persons or are issuers with a corporate website that have a class of equity securities registered under Exchange Act Section 12.
Exchange Act Rule 0-10(a)127 defines an entity, other than an investment company, to be a "small business" or "small organization" if it had total assets of $5 million or less on the last day of its most recent fiscal year. As of March 30, 2003, we estimated that there were approximately 8840 insiders128 and fewer than 2500 issuers that have a class of equity securities registered under Exchange Act Section 12, other than investment companies, that may be considered small entities. The mandated electronic filing amendments will apply to all of these insiders. The mandated website posting amendments will apply to all of these issuers with corporate websites.
For purposes of the Regulatory Flexibility Act, an investment company is a small entity if it, together with other investment companies in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent fiscal year. As of June, 2002, we estimate that there were 36 closed-end investment companies, and 29 business development companies, that are "small entities" for purposes of the Regulatory Flexibility Act that possibly could be affected by the amendments.
D. Projected Reporting, Recordkeeping, and Other Compliance Requirements
Before the effective date of the rule and form amendments adopted in this release, insiders may file Forms 3, 4 and 5 in paper or electronically and issuers with corporate websites need not post Forms 3, 4 and 5 as to their equity securities on their websites. The amendments require insiders to file these forms electronically and issuers with corporate websites to post these forms. Because insiders already file these forms in paper, the only additional professional skills insiders will need will be those required to file electronically. Because the website posting requirements apply only to issuers that already have corporate websites, we believe these issuers will need no additional professional skills to post these forms on their websites. We expect that filing electronically and website posting will increase costs incurred by some small entities. However, we expect that many small entity insiders and small entity issuers will not bear the full range of costs resulting from the adoption of these amendments for the reasons described below.
The expected costs of mandated electronic filing consist of both initial and ongoing costs. Initial costs are those associated with obtaining, completing and sending to the Commission a Form ID to obtain filing credentials, and the purchase of compatible computer equipment and software. Initial costs further include those associated with learning about the electronic filing system, placing the filing data in electronic format for the initial electronic filing and subscribing to an Internet service provider. Ongoing costs are those associated with maintaining the framework developed through the initial costs (for example, updating information required by Form ID) and any additional costs arising from each subsequent filing (for example, placing the new filing data in electronic format).129
We expect that many small entity insiders will need to incur few, if any, additional costs from electronic filing. Some issuers may help their small entity insiders or submit the small entity insiders' filings on their behalf. To the extent small entity insiders do not receive this assistance, we believe many already will have the necessary computer equipment and Internet access to enable them to file using the templates that will appear on the Commission's website. Finally, some small entity insiders already may have filed Forms ID and gained experience in arranging electronic filing.130
Even those small entity issuers that assist their insiders to file electronically, whether to a greater or lesser extent, are not likely to incur additional costs. Small entity issuers already are required to file on EDGAR and generally have the necessary computer equipment and Internet service provider access to enable them to facilitate filing using the templates that will appear on the Commission's website.
Small entity issuers should incur relatively few direct costs from the website posting requirement. Because the requirement applies only to those small entity issuers that already have a corporate website, small entity issuers will not need to incur the costs associated with creating or maintaining a website. In addition, small entity issuers could limit their additional costs associated with posting by hyperlinking to a third-party website such as EDGAR.
E. Agency Action to Minimize Effect on Small Entities
As required by the Regulatory Flexibility Act, we have considered alternatives that would accomplish our stated objectives, while minimizing any significant adverse impact on small entities. In connection with the amendments, we considered the following alternatives:
| the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities;
|
| the clarification, consolidation, or simplification of filing or
posting requirements;
|
| the use of performance rather than design standards; and
|
| an exemption from the electronic filing and website posting requirements, or any part of them, for small entities. |
We believe that differing compliance or reporting requirements or timetables for small entities (or a partial or complete exemption) would be inconsistent with the will of Congress as reflected in amended Section 16(a) and the more efficient transmission, dissemination, analysis, storage and retrieval of insider ownership and transaction information in a manner that will benefit investors, filers and the Commission. We did not receive any response to our solicitation of comment on whether differing compliance or reporting requirements or timetables for small entities would be consistent with the statutory mandate and described goals. We believe that the adopted electronic filing and website posting requirements are clear and straightforward. We have attempted to design an electronic filing system for these forms that will be simple for all filers to use. Therefore, it does not seem necessary to develop separate requirements for small entities. We have used design rather than performance standards in connection with the electronic filing and website posting requirements because we want investors to know where to find the information, and want both investors and the Commission to be readily able to analyze, store and retrieve the information involved. We also want the information disseminated to be in a comparable form for both large and small issuers. We do not believe that performance standards for small entities would be consistent with the purpose of the statutory amendments.
VIII. STATUTORY BASIS
We are adopting the amendments to Regulation S-T, the Code of Federal Regulations description of Form 144, Rule 16a-3, and Forms 3, 4 and 5, and the removal of Form ET under the authority in Section 19(a) of the Securities Act, Sections 3(b), 16, 23(a) and 35A of the Exchange Act, Section 17(a) of the Public Utility Act, Section 319 of the Trust Indenture Act, Section 30(h) of the Investment Company Act, and Section 3(a) of the Sarbanes-Oxley Act.
TEXT OF RULE AMENDMENTS
List of Subjects in 17 CFR Parts 230, 232, 239, 240, 249, 250, 259, 260, 269 and 274
Reporting and Recordkeeping requirements, Securities.
For the reasons set forth above, we amend title 17, chapter II of the Code of Federal Regulations as follows.
PART 230 - GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
1. The authority citation for Part 230 continues to read in part as follows:
Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77s, 77sss, 77z-3, 78c, 78d, 78l, 78m, 78n, 78o, 78t, 78w, 78ll(d), 78mm, 79t, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-37, unless otherwise noted.
* * * * *
2. Amend §230.110 by revising paragraph (b) to read as follows:
§ 230.110 Business hours of the Commission.
* * * * *
(b) Submissions made in paper. Paper documents filed with or otherwise furnished to the Commission may be submitted each day, except Saturdays, Sundays and federal holidays, from 8 a.m. to 5:30 p.m., Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect.
* * * * *
PART 232 - REGULATION S-T - GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS
3. The authority citation for Part 232 continues to read, in part as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79t(a), 80a-8, 80a-29, 80a-30 and 80a-37.
* * * * *
4. Amend §232.12 by revising paragraph (b) to read as follows:
§ 232.12 Business hours of the Commission.
* * * * *
(b) Submissions made in paper. Filers may submit paper documents filed with or otherwise furnished to the Commission each day, except Saturdays, Sundays and federal holidays, from 8 a.m. to 5:30 p.m., Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect.
* * * * *
5. Amend §232.13 by adding paragraph (a)(4) before the Note to read as follows:
§ 232.13 Date of filing; Adjustment of filing date.
(a) General.
* * * * *
(4) Notwithstanding paragraph (a)(2) of this section, a Form 3, 4 or 5 (§§249.103, 249.104 and 249.105 of this chapter) submitted by direct transmission on or before 10 p.m. Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect, shall be deemed filed on the same business day.
Note: * * *
* * * * *
6. Amend §232.101 by:
a. Revising paragraph (a)(1)(iii);
b. Removing paragraph (b)(4); and
c. Redesignating paragraphs (b)(5) through (b)(10) as paragraphs (b)(4) through (b)(9).
The revision reads as follows:
§ 232.101 Mandated electronic submissions and exceptions.
(a) * * *
(1) * * *
(iii) Statements, reports and schedules filed with the Commission pursuant to sections 13, 14, 15(d) or 16(a) of the Exchange Act (15 U.S.C. 78m, 78n, 78o(d) and 78p(a)), and proxy materials required to be furnished for the information of the Commission in connection with annual reports on Form 10-K (§249.310 of this chapter), or Form 10-KSB (§249.310b of this chapter) filed pursuant to section 15(d) of the Exchange Act.
* * * * *
7. Amend §232.104 by revising paragraph (a) to read as follows:
§232.104 Unofficial PDF Copies Included in an Electronic Submission.
(a) An electronic submission, other than a Form 3 (§249.103), a Form 4 (§249.104) or a Form 5 (§249.105), may include one unofficial PDF copy of each electronic document contained within that submission, tagged in the format required by the EDGAR filer manual.
* * * * *
8. Amend §232.201 by revising paragraph (a) to read as follows:
§232.201 Temporary hardship exemption.
(b) If an electronic filer experiences unanticipated technical difficulties preventing the timely preparation and submission of an electronic filing, other than a Form 3 (§249.103), a Form 4 (§249.104) or a Form 5 (§249.105), the electronic filer may file the subject filing, under cover of Form TH (§§239.65, 249.447, 259.604, 269.10 and 274.404 of this chapter), in paper format no later than one business day after the date on which the filing was to be made.
* * * * *
PART 239 - FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
9. The authority citation for Part 239 is amended by revising the subauthority for "Secs. 239.62, 239.63 and 239.64" to read as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79(e), 79f, 79g, 79j, 79l, 79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-26, 80a-29, 80a-30 and 80a-37, unless otherwise noted.
* * * * *
Secs. 239.63 and 239.64 also issued under secs. 6, 7, 8, 10 and 19(a) of the Securities Act (15 U.S.C. 77f, 77g, 77h, 77j and 77s(a)); secs. 3(b), 12, 13, 14, 15(d) and 23(a) of the Exchange Act (15 U.S.C. 78c(b), 78l, 78m, 78n, 78o(d) and 78w(a)); secs. 5, 6, 7, 10, 12, 13, 14, 17 and 20 of the Holding Company Act (15 U.S.C. 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q and 79t); sec. 319(a) of the Trust Indenture Act (15 U.S.C. 77sss(a)) and secs. 8, 24, 30 and 38 of the Investment Company Act (15 U.S.C. 80a-8, 80a-24, 80a-29 and 80a-37).
10. Remove and reserve §239.62 and remove Form ET.
11. Amend §239.144 by removing the seventh sentence in paragraph (c).
PART 240 - GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934
12. The authority citation for Part 240 continues to read, in part, as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and 80b-11, unless otherwise noted.
13. Amend §240.0-2 by revising paragraph (b) to read as follows:
§ 240.0-2 Business hours of the Commission.
* * * * *
(b) Submissions made in paper. Paper documents filed with or otherwise furnished to the Commission may be submitted to the Commission each day, except Saturdays, Sundays and federal holidays, from 8 a.m. to 5:30 p.m., Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect.
* * * * *
14. Amend §240.16a-3 by revising paragraph (h) and adding paragraph (k) to read as follows:
§240.16a-3 Reporting transactions and holdings.
* * * * *
(h) The date of filing with the Commission shall be the date of receipt by the Commission.
* * * * *
(k) Any issuer that maintains a corporate website shall post on that website by the end of the business day after filing any Form 3, 4 or 5 filed under section 16(a) of the Act as to the equity securities of that issuer. Each such form shall remain accessible on such issuer's website for at least a 12-month period. In the case of an issuer that is an investment company and that does not maintain its own website, if any of the issuer's investment adviser, sponsor, depositor, trustee, administrator, principal underwriter, or any affiliated person of the investment company maintains a website that includes the name of the issuer, the issuer shall comply with the posting requirements by posting the forms on one such website.
PART 249 - FORMS, SECURITIES EXCHANGE ACT OF 1934
15. The authority citation for Part 249 continues to read in part as follows:
Authority: 15 U.S.C. 78a et seq., unless otherwise noted.
16. Remove and reserve §249.445 and remove Form ET.
PART 250 - GENERAL RULES AND REGULATIONS, PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
17. The authority citation for Part 250 continues to read as follows:
Authority: 15 U.S.C. 79c, 79f(b), 79i(c)(3), 79t, unless otherwise noted.
18. Amend §250.21 by revising paragraph (b)(1) to read as follows:
§ 250.21 Filing of documents.
(a) * * *
(b) Electronic filings. (1) All documents required to be filed with the Commission under the Act or the rules and regulations thereunder must be filed at the principal office in Washington, DC via EDGAR by delivery to the Commission by direct transmission, via dial-up modem or Internet.
* * * * *
PART 259 - FORMS PRESCRIBED UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
19. The authority citation for Part 259 continues to read as follows:
Authority: 15 U.S.C. 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q, 79t.
20. Remove and reserve §259.601 and remove Form ET.
PART 260 - GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF 1939
21. The authority citation for Part 260 continues to read as follows:
Authority: 15 U.S.C. 77eee, 77ggg, 77nnn, 77sss, 78ll(d), 80b-3, 80b-4, and 80b-11.
22. Amend §260.0-5 by revising paragraph (b) to read as follows:
§ 260.0-5 Business hours of the Commission.
* * * * *
(b) Submissions made in paper. Paper documents filed with or otherwise furnished to the Commission may be submitted to the Commission each day, except Saturdays, Sundays and federal holidays, from 8 a.m. to 5:30 p.m., Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect.
* * * * *
PART 269 - FORMS PRESCRIBED UNDER THE TRUST INDENTURE ACT OF 1939
23. The authority citation for Part 269 continues to read as follows:
Authority: 15 U.S.C. 77ddd(c), 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77sss, 78ll(d), unless otherwise noted.
24. Remove and reserve §269.6 and remove Form ET.
PART 274 - FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940
25. The authority citation for Part 274 continues to read in part as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m, 78n, 78o(d), 80a-8, 80a-24, 80a-26, and 80a-29, unless otherwise noted.
26. Amend Form 3 (referenced in §249.103 and §274.202) by:
a. Revising General Instruction 3(a);
b. Adding a note following General Instruction 3;
c. Revising General Instruction 5(b)(v);
d. Revising General Instruction 6;
e. Adding a new General Instruction 8;
f. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the information preceding Table I as Items 3, 4, 5 and 6 to the information preceding Table I; and
g. Revising newly redesignated Item 5 to the information preceding Table I.
The revisions and additions read as follows:
Note - The text of Form 3 does not and this amendment will not appear in the Code of Federal Regulations.
Form 3 Initial Statement of Beneficial Ownership of Securities
* * * * *
GENERAL INSTRUCTIONS
* * * * *
3. Where Form Must be Filed
(a) A reporting person must file this Form in electronic format via the Commission's Electronic Data Gathering Analysis and Retrieval System (EDGAR) in accordance with EDGAR rules set forth in Regulation S-T (17 CFR Part 232), except that a filing person that has obtained a hardship exception under Regulation S-T Rule 202 (17 CFR 232.202) may file the Form in paper. For assistance with technical questions about EDGAR or to request an access code, call the EDGAR Filer Support Office at (202) 942-8900. For assistance with questions about the EDGAR rules, call the Office of EDGAR and Information Analysis at (202) 942-2940.
* * * * *
NOTE: If filing pursuant to a hardship exception under Regulation S-T Rule 202 (17 CFR 232.202), file three copies of this Form or any amendment, at least one of which is signed, with the Securities and Exchange Commission, 450 5th Street, NW, Washington, DC 20549. (Acknowledgement of receipt by the Commission may be obtained by enclosing a self-addressed stamped postcard identifying the Form or amendment filed.)
* * * * *
5. Holdings Required to be Reported
* * * * *
(b) Beneficial Ownership Reported (Pecuniary Interest).
* * * * *
(v) Where more than one person beneficially owns the same equity securities, such owners may file Form 3 individually or jointly. Joint and group filings may be made by any designated beneficial owner. Holdings of securities owned separately by any joint or group filer are permitted to be included in the joint filing. Indicate only the name and address of the designated filer in Item 1 of Form 3 and attach a list of the names and addresses of each other reporting person. Joint and group filings must include all required information for each beneficial owner, and such filings must be signed by each beneficial owner, or on behalf of such owner by an authorized person.
If this Form is being filed in paper pursuant to a hardship exemption and the space provided for signatures is insufficient, attach a signature page. If this Form is being filed in paper, submit any attached listing of names or signatures on another Form 3, copy of Form 3 or separate page of 8 ½ by 11 inch white paper, indicate the number of pages comprising the report (Form plus attachments) at the bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include the name of the designated filer and information required by Items 2 and 3 of the Form on the attachment.
See Rule 16a-3(i) regarding signatures.
* * * * *
6. Additional Information
(a) If the space provided in the line items on the electronic Form is insufficient, use the space provided for footnotes. If the space provided for footnotes is insufficient, create a footnote that refers to an exhibit to the form that contains the additional information.
(b) If the space provided in the line items on the paper Form or space provided for additional comments is insufficient, attach another Form 3, copy of Form 3 or separate 8 ½ by 11 inch white paper to Form 3, completed as appropriate to include the additional comments. Each attached page must include information required in Items 1, 2 and 3 of the Form. The number of pages comprising the report (Form plus attachments) shall be indicated at the bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3).
(c) If one or more exhibits are included, whether due to a lack of space or because the exhibit is, by nature, a separate document (e.g., a power of attorney), provide a sequentially numbered list of the exhibits in the Form. Use the number "24" for any power of attorney and the number "99" for any other exhibit. If there is more than one of either such exhibit, then use numerical subparts. If the exhibit is being filed as a confirming electronic copy under Regulation S-T Rule 202(d) (17 CFR 232.202(d)), then place the designation "CE" (confirming exhibit) next to the name of the exhibit in the exhibit list. If the exhibit is being filed in paper pursuant to a hardship exception under Regulation S-T Rule 202 (17 CFR 232.202), then place the designation "P" (paper) next to the name of the exhibit in the exhibit list.
(d) If additional information is not reported as provided in paragraph (a), (b) or (c) of this instruction, whichever apply, it will be assumed that no additional information was provided.
* * * * *
8. Amendments
(a) If this Form is filed as an amendment in order to add one or more lines of ownership information to Table I or Table II of the Form being amended, provide each line being added, together with one or more footnotes, as necessary, to explain the addition of the line or lines. Do not repeat lines of ownership information that were disclosed in the original Form and are not being amended.
(b) If this Form is filed as an amendment in order to amend one or more lines of ownership information that already were disclosed in Table I or Table II of the Form being amended, provide the complete line or lines being amended, as amended, together with one or more footnotes, as necessary, to explain the amendment of the line or lines. Do not repeat lines of ownership information that were disclosed in the original Form and are not being amended.
(c) If this Form is filed as an amendment for any purpose other than or in addition to the purposes described in paragraphs (a) and (b) of this General Instruction 8, provide one or more footnotes, as necessary, to explain the amendment.
* * * * *
Form 3
* * * * *
5. If Amendment, Date Original Filed
(Month/Day/Year)
* * * * *
Table I - Non-Derivative Securities Beneficially Owned
* * * * *
27. Amend Form 4 (referenced in §249.104 and §274.203) by:
a. Revising General Instruction 2(a);
b. Adding a note following General Instruction 2;
c. Revising General Instruction 4(b)(v);
d. Revising General Instruction 6;
e. Adding new General Instruction 9;
f. Revising the form heading;
g. Removing Item 3 and redesignating Items 4, 5, 6 and 7 to the information preceding Table I as Items 3, 4, 5 and 6 to the information preceding Table I; and
h. Revising newly redesignated Items 3 and 4 to the information preceding Table I.
The revisions and additions read as follows:
Note - The text of Form 4 does not and this amendment will not appear in the Code of Federal Regulations.
Form 4 Statement of Changes in Beneficial Ownership of Securities
* * * * *
GENERAL INSTRUCTIONS
* * * * *
2. Where Form Must be Filed
(a) A reporting person must file this Form in electronic format via the Commission's Electronic Data Gathering Analysis and Retrieval System (EDGAR) in accordance with EDGAR rules set forth in Regulation S-T (17 CFR Part 232), except that a filing person that has obtained a hardship exception under Regulation S-T Rule 202 (17 CFR 232.202) may file the Form in paper. For assistance with technical questions about EDGAR or to request an access code, call the EDGAR Filer Support Office at (202) 942-8900. For assistance with questions about the EDGAR rules, call the Office of EDGAR and Information Analysis at (202) 942-2940.
* * * * *
NOTE: If filing pursuant to a hardship exception under Regulation S-T Rule 202 (17 CFR 232.202), file three copies of this Form or any amendment, at least one of which is signed, with the Securities and Exchange Commission, 450 5th Street, NW, Washington, DC 20549. (Acknowledgement of receipt by the Commission may be obtained by enclosing a self-addressed stamped postcard identifying the Form or amendment filed.)
* * * * *
4. Transactions and Holdings Required to be Reported
* * * * *
(b) Beneficial Ownership Reported (Pecuniary Interest).
* * * * *
(v) Where more than one beneficial owner of the same equity securities must report the same transaction on Form 4, such owners may file Form 4 individually or jointly. Joint and group filings may be made by any designated beneficial owner. Transactions with respect to securities owned separately by any joint or group filer are permitted to be included in the joint filing. Indicate only the name and address of the designated filer in Item 1 of Form 4 and attach a list of the names and addresses of each other reporting person. Joint and group filings must include all required information for each beneficial owner, and such filings must be signed by each beneficial owner, or on behalf of such owner by an authorized person.
If this Form is being filed in paper pursuant to a hardship exemption and the space provided for signatures is insufficient, attach a signature page. If this Form is being filed in paper, submit any attached listing of names or signatures on another Form 4, copy of Form 4 or separate page of 8 ½ by 11 inch white paper, indicate the number of pages comprising the report (Form plus attachments) at the bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3), and include the name of the designated filer and information required by Items 2 and 3 of the Form on the attachment.
See Rule 16a-3(i) regarding signatures.
* * * * *
6. Additional Information
(a) If the space provided in the line items on the electronic Form is insufficient, use the space provided for footnotes. If the space provided for footnotes is insufficient, create a footnote that refers to an exhibit to the form that contains the additional information.
(b) If the space provided in the line items on the paper Form or space provided for additional comments is insufficient, attach another Form 4, copy of Form 4 or separate 8 ½ by 11 inch white paper to Form 4, completed as appropriate to include the additional comments. Each attached page must include information required in Items 1, 2 and 3 of the Form. The number of pages comprising the report (Form plus attachments) shall be indicated at the bottom of each report page (e.g., 1 of 3, 2 of 3, 3 of 3).
(c) If one or more exhibits are included, whether due to a lack of space or because the exhibit is, by nature, a separate document (e.g., a power of attorney), provide a sequentially numbered list of the exhibits in the Form. Use the number "24" for any power of attorney and the number "99" for any other exhibit. If there is more than one of either such exhibit, then use nu