SEC Extends Guidance on Manual Signatures Required under Rule 302(b) of Regulation S-T as a Result of Coronavirus (COVID-19)

On June 25, 2020, in light of the continuation of the coronavirus (“COVID-19”) pandemic, the Division of Corporation Finance, the Division of Investment Management and the Division of Trading and Markets (collectively, the “Divisions”) of the Securities and Exchange Commission (the “SEC”) extended their guidance discussed in our earlier Viewpoints advisory regarding manually signed documents for signatures to electronic filings under the federal securities laws. The Divisions have extended their guidance until they provide public notice that it no longer will be in effect, which notice will be published at least two weeks before the guidance ends.

Under Rule 302(b) of Regulation S-T, “[e]ach signatory to an electronic filing shall manually sign a signature page or other document authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing. Such document shall be executed before or at the time the electronic filing is made and shall be retained by the filer for a period of five years. Upon request, an electronic filer shall furnish to the [SEC] or its staff a copy of any or all documents retained pursuant to this section.”

Although the Divisions expect filers to comply with the requirements of Rule 302(b) to the fullest extent practicable, in light of the fact that some persons and entities may experience difficulties satisfying these requirements due to circumstances arising from COVID-19, the staff of the Divisions will not recommend the SEC take enforcement action with respect to the requirements of Rule 302(b) if:

• a signatory retains a manually signed signature page or other document authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing and provides such document, as promptly as reasonably practicable, to the filer for retention in the ordinary course pursuant to Rule 302(b);
• such document indicates the date and time when the signature was executed; and
• the filer establishes and maintains policies and procedures governing this process.

If a signatory is teleworking, the signatory could execute a hard copy of the signature page remotely and hold that page for delivery to the filer upon his or her return to the place of work or the signatory may provide the filer an electronic record (such as a photograph or pdf) of such document when it is signed.

This is in addition to the SEC’s extension of relief for email filing of certain paper documents we discuss in our other Viewpoints advisory and to the Division’s statement extending the ability to file Forms 144 by email to [email protected] until public notice otherwise, which notice will be published at least two weeks before the policy ends.

The SEC continues to state that it will address other issuer-related COVID-19 issues not addressed in its other regulatory relief efforts or other announcements on a case-by-case basis in light of their fact-specific nature.

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