The secrets of Edgar filing for non-US issuers

December 01 2001

Under new SEC proposals, Regulation S-T will be amended to extend the requirement to file with its electronic system, Edgar, to non-US issuers. Sebastian Sperber and Ying Hsu of Cleary Gottlieb Steen & Hamilton, Hong Kong, explain how to negotiate the system

According to recent SEC proposals, non-US issuers would soon have to meet the same mandatory electronic filing requirements as their US counterparts. To date, "foreign governments" and "foreign private issuers" have been exempt from Regulation S-T, which sets out the electronic filing requirements, based on the SEC's earlier belief that electronic filing through the Edgar system would be considerably more burdensome for non-US issuers than domestic issuers.

Regulation S-T was phased in from April 23 1993 and US companies have been filing electronically ever since. Under the SEC's proposals, non-US issuers would become mandatory electronic filers starting four months from the adoption of the proposed amendments, which are open for comment until December 3 2001.

The proposals had been expected for some time, and were specifically referred to in a May 2001 letter from the SEC's acting chairman at the time, Laura Unger, to Congressman Frank Wolf (R-Va), which stated that the staff of the SEC would propose requiring foreign private issuers to make filings with the SEC through the Edgar system to facilitate the investing public's access to such filings. The letter was issued in response to Congressman Wolf's inquiry regarding the SEC's ability to limit access to the US capital markets by non-US companies engaged in activities in countries subject to certain US embargoes and other sanctions.

In its release (see box, "What is Edgar?"), the SEC states that the exemption of non-US issuers from Regulation S-T is no longer justified due to advances in communications technology. The SEC also notes that many non-US issuers are now subject to the mandatory electronic filing requirements of their domestic securities regulators or voluntarily post their securities filings on their websites. Based on these developments, the SEC has now concluded that the mandatory electronic filing requirements of Regulation S-T should be extended to non-US issuers.

What is Edgar? The SEC's Electronic Data Gathering, Analysis and Retrieval system (Edgar) provides a centralized electronic filing system for companies and other third parties submitting registration statements, prospectuses, periodic reports and other documents under the Securities Act of 1933, the Securities Exchange Act of 1934, the Public Utility Holding Company Act of 1935, the Trust Indenture Act of 1939 and the Investment Company Act of 1940, and it performs automated collection, acceptance, indexing and forwarding of such documents. The electronic filing requirements, which at present do not apply to foreign governments and foreign private issuers, are set forth in Regulation S-T. The SEC recently issued a release proposing to amend Regulation S-T to extend the electronic filing requirements to non-US issuers (SEC Release Nos. 33-8016; 34-44868 (October 4 2001); available also on the SEC's website).

With the possible exception of the SEC's proposed treatment of foreign language exhibits (including attachments to periodic reports), most non-US issuers are not likely to find Regulation S-T's electronic filing requirements to be particularly burdensome. Non-US issuers that at present file periodic reports on Form 6-K and other documents directly with the SEC may, however, in the future be required to make their filings through financial printers, their US counsel or other filing agents. Alternatively, non-US issuers would be required to buy compatible computer systems and software and to train their employees to become proficient with the Edgar system. If the SEC's proposals are adopted, we expect that most non-US issuers will, like many of their US counterparts, respond by making their filings exclusively through a financial printer, their US counsel or another filing agent.

Filings affected

Under the SEC's proposals, absent a hardship exemption, all subsequent filings by or relating to foreign governments and foreign private issuers would be required to be made electronically through the Edgar system, subject to a limited number of exceptions. Documents for which electronic submission would not be mandatory include:

Form CB filings in certain rights offerings, exchange offers and business combinations;
filings of annual budgets on Form SE by foreign governments and political subdivisions if no English translation is available; and
"glossy" annual reports filed on Form 6-K, so long as the filing is limited exclusively to a copy of the annual report.

In addition, applications and supporting documents for exemptions from the reporting requirements of the Exchange Act pursuant to Rule 12g3-2(b), and periodic information furnished to the SEC under that rule, would still need to be submitted on paper rather than electronically. Non-US issuers would be afforded the same flexibility now given to domestic issuers to incorporate by reference a previously paper-filed exhibit into an electronic filing.

Under the proposed amendments, non-US issuers would be entitled to the same hardship exemptions that now apply to domestic issuers. A non-US issuer may therefore request a continuing hardship exemption from the electronic filing requirements of Regulation S-T by submitting a written application pursuant to Rule 202 of Regulation S-T, or a temporary hardship exemption under Rule 201 of Regulation S-T by filing a properly legended paper copy of any filing on Form TH. The hardship exemptions under Rules 201 and 202 are discussed further below.

Foreign language exhibits

The most burdensome change affecting non-US issuers (assuming they make arrangements for electronic filing through a financial printer, their US counsel or another filing agent) may be the proposed elimination of the ability of non-US issuers to file foreign language documents as exhibits to registration statements, periodic reports and other documents. Under Rule 403(c) of the Securities Act of 1933 and Rule 12b-12(d) under the Securities Exchange Act of 1934, paper filers are allowed to file a foreign language document as an exhibit if it is accompanied by "a summary, version or translation in the English language". The SEC's proposed amendments would not change the existing requirement in Rule 306 of Regulation S-T that the body of all filings and submissions, as well as any exhibits, be in English. Under Rule 306, if a document to be filed as an exhibit is in a foreign language, a fair and accurate English translation must be filed, together with a representation by an officer of the filing entity that the translation is fair and accurate.

The staff of the SEC noted in the release that it believes this new requirement should not be a substantial burden on non-US issuers because the staff has historically interpreted the English "summary or version" option narrowly by requiring complete English translations of exhibits that in the staff's view are too significant to be summarized. Nevertheless, we expect that many non-US issuers may find the requirement to provide English translations costly, and that this requirement is likely to be the most significant source of comments to the proposed amendments.

Regulation S-T

Regulation S-T contains the general provisions governing the electronic submission of documents filed or otherwise submitted to the SEC under the specified statutes. These provisions are supplemented by the electronic filing provisions of applicable rules, regulations and forms promulgated under the specified statutes and the Edgar Filer Manual, promulgated by the SEC, which sets forth specific technical formatting requirements and instructions on how to prepare and send submissions through Edgar.

Under Rule 101(a) of Regulation S-T, filings that must be submitted in electronic format include registration statements filed pursuant to the Securities Act or Section 12(b) or 12(g) of the Exchange Act and reports, statements and schedules filed pursuant to the periodic and proxy reporting requirements of the Exchange Act. Any domestic person (ie any person or entity other than a foreign government or a foreign private issuer) that files such documents, as well as any party, including foreign governments and foreign private issuers, that files jointly with, or as a third-party filer with respect to, such a person, is subject to the electronic filing requirements of Regulation S-T. For example, a US or non-US company named as a guarantor and co-registrant on a registration statement with respect to its domestic US subsidiary must file the registration statement and related documents through Edgar, as must any person that is required to report its ownership on Schedule 13D or 13G with respect to the securities of a US registrant that is subject to the electronic filing requirements. As noted above, under the SEC's proposed amendments, the list of covered persons and documents would expand to include foreign governments and foreign private issuers. Failure to submit a required electronic filing pursuant to Rule 101(a) will constitute a violation of the periodic reporting requirements, and therefore result in the registrant's ineligibility to use short-form registration statements on Forms S-2, S-3, S-8, F-2 and F-3; restrict incorporation by reference of the document submitted in paper or toll certain time periods associated with tender offers as provided under Rules 13e-4(f)(12) and 14e-1(e) under the Exchange Act.

Rules 101(b) and (c) list permitted, but not required, electronic submissions, as well as documents that must be submitted in paper format only. Permitted, but not required, electronic filings include "glossy" annual reports to security holders (so long as the filing is limited exclusively to a copy of the annual report) furnished by domestic companies to the SEC, pursuant to specified rules under the Exchange Act and filings on Form 144 where the issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. Mandated paper filings include confidential treatment requests and the underlying information, including: preliminary proxy materials and information statements; shareholder proposals and all related correspondence submitted pursuant to Rule 14a-8 under the Exchange Act; no-action and interpretive letter requests; filings relating to offerings exempt from registration under the Securities Act; filings on Form 144 where the issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; and filings on Form F-6.

All electronic filers must submit to the SEC a paper copy of their first electronic filing. The paper copy can be either a document meeting the requirements of the applicable rules and regulations for paper filings or a printout of the electronic filing, and should bear a legend, as required by Rule 101(d) to the effect that such paper submission is being made pursuant to the rule.

Exhibits in electronic filings are separately addressed in Rule 102 of Regulation S-T. In general, exhibits to an electronic filing that have not been previously filed must be filed in electronic format, absent a hardship exemption, while exhibits previously filed with the SEC in either paper or electronic format may be incorporated by reference into the underlying electronic filing to the extent allowed under the applicable statutory provisions. An electronic filer has the option of restating on Edgar an exhibit that was originally filed in paper format and must file amendments to all exhibits, whether electronically filed or incorporated by reference to a previously-filed paper copy, in electronic format absent a hardship exemption. An electronic filer must restate in electronic format its articles of incorporation or by-laws upon amendment thereof. Each electronic filing requiring exhibits must contain an exhibit index preceding the exhibits and listing each of the exhibits filed, with the appropriate notation as to whether a particular exhibit is being filed in paper pursuant to a temporary or continuing hardship exemption, whether an electronic "confirming copy" (described below) is being filed pursuant to a hardship exemption and, if so, where the confirming electronic copy can be located. Under the SEC's proposed amendments, these rules would apply equally to US and non-US issuers.

In addition, the SEC proposes to amend Rule 303(b) to require that if a non-US issuer incorporates by reference into an electronic filing any portion of an annual or other report to its security holders, it must file that portion in electronic format as an exhibit to the filing. This is consistent with the requirement applicable to US issuers under the existing version of Rule 303(b).

Exemptions from the electronic filing requirements are available under Rules 201 and 202. An electronic filer may apply for a temporary hardship exemption and file the subject filing in paper format pursuant to the requirements of Rule 201 if it experiences unexpected technical difficulties preventing the timely preparation and submission of an electronic filing. Alternatively, a filer may apply in writing for a continuing hardship exemption under Rule 202 if it cannot effect all or a part of a filing or group of filings electronically without undue burden or expense. The SEC staff may, at its discretion, deny such an application, in which case the filer must submit the subject filing electronically on the required due date, or grant the application for a limited time period, in which case the filer may file the document(s) in paper format until the expiration of the granted period, when the filer must comply with the electronic filing requirements. Rules 201 and 202(d) require that filers receiving a temporary hardship exemption or a continuing hardship exemption for a limited time period submit an electronic format copy, or a "confirming copy", of the filed paper format document within six business days of filing the paper format or upon the expiration of the period for which the exemption is granted, respectively. Failure to do so will constitutes a violation of the periodic reporting requirements, with the same implications noted above for failure to submit a required electronic filing pursuant to Rule 101(a).

Filing fees apply equally to electronic, paper and hardship exemption filers. Paper filers may either send the applicable fee by wire transfer through the Fedwire system to Mellon Bank, the SEC's designated depositary for filing fees, or by cheque through the mail or hand delivery to Mellon Bank or directly to the SEC. Electronic filers and filers making a submission in paper under a hardship exemption must send the fee to Mellon Bank by wire transfer through Fedwire or by cheque through the mail or hand delivery. Appendix E of the Edgar Filer Manual contains a list of filings that require filing fees, instructions on how to calculate the applicable filing fee, as well as instructions on how to make electronic fee payments through the Fedwire system. In addition, filers may obtain the Fedwire instructions from the SEC's website. Filers making electronic fee payments should note that wire transfers are not instantaneous. The time required to process a wire transfer through the Fedwire system from origination to receipt by Mellon Bank varies substantially, and filers should discuss with their banks or wire transfer services the unique procedures utilized and the timing required to ensure timely receipt of the filing fees. Filings are not deemed made until the applicable fees have been received by the SEC. Filers are also advised to obtain from their banks or wire transfer services the wire number of the wire transfer, which can facilitate tracing the funds should any problem occur.

Electronic filers that submit their documents through Edgar by direct transmission, either via the internet or dial-up modem, have the benefit of longer filing hours than those provided for paper filers or issuers filing through Edgar by magnetic cartridge. Under Rule 12 of Regulation S-T, the SEC accepts Edgar filings by direct transmission from 8:00am until 10:00pm, Eastern Standard Time or Eastern Daylight Saving Time, whichever is in effect, every day except Saturdays, Sundays and federal holidays. In contrast, paper and magnetic cartridge filings must be made between the hours of 8:00am and 5:30pm. Under Rule 13 of Regulation S-T, the business day on which the SEC receives a filing on Edgar will generally be the date of filing if it is submitted by direct transmission commencing on or before 5:30pm. All filings submitted by direct transmission commencing after 5:30pm will be deemed filed as of the next business day. Rule 13(a)(3) provides one exception to this general rule, whereby any registration statement or post-effective amendment thereto filed pursuant to Rule 462(b) under the Securities Act (relating to an increase in an offering's maximum aggregate offering price of no more than 20%) by direct transmission commencing on or before 10:00pm will be deemed filed on the same business day.

Required signatures to any electronic submission must be in typed rather than manual format. Before or at the time of an electronic filing, each person whose signature is required thereon pursuant to applicable laws must manually sign a signature page or otherwise authenticate his or her signature appearing in typed form in the electronic filing. This document should be maintained for a period of five years.

Under Rule 103 of Regulation S-T, an electronic filer is not subject to the liability and antifraud provisions of the federal securities laws with respect to an error or omission in an electronic filing if it results solely from transmission errors beyond the filer's control and the filer files an amendment in electronic format to correct the error or omission as soon as reasonably practicable after it becomes aware of such an error or omission.

Glossary of terms

Foreign government

A government of any foreign country or any political subdivision thereof. See Rule 405 under the Securities Act and Rule 3b-4 under the Exchange Act

Foreign private issuer

A corporation incorporated or organized under the laws of any foreign country is a "foreign private issuer" unless more than 50% of its outstanding voting securities are held of record (either directly or indirectly) by residents of the US and: (i) the majority of its executive officers or directors are US citizens or residents; (ii) more than 50% of its assets are located in the US; or (iii) its business is administered principally in the US. See Rule 405 under the Securities Act and Rule 3b-4 under the Exchange Act.

Form CB

To take advantage of certain exemptions from the requirements of the Securities Act and the Exchange Act in connection with rights offerings, exchange offers or business combinations involving a foreign private issuer, US and non-US persons would be required to file certain information on Form CB in connection therewith. See Rules 801(a)(4) and 802(a)(3) under the Securities Act; Rules 13e-4(h)(8), 14d-l(c) and 14e-2(d) under the Exchange Act. A filing on Form CB must include the entire disclosure document(s), including any amendments thereto, in English, that are published in the foreign private issuer's home jurisdiction or otherwise disseminated to holders of the securities of such issuer in connection with the proposed transaction, and must be furnished to the SEC by the first business day after such publication or dissemination. Similar to the treatment of Form 6-K reports (discussed below), information furnished on Form CB is not deemed to be "filed" for the purpose of, or otherwise subject to the liabilities of, Section 18 of the Exchange Act.

Form SE

Form SE is the form used by electronic filers to submit a document in paper. Under the existing version of Rule 306 of Regulation S-T, a foreign government cannot file, and does not need to file, in electronic format the foreign language version of its latest annual budget if no English translation is available, and Form SE does not at present provide for filing of a copy of the foreign language version in paper. The SEC proposes to amend Rules 306 and 311 to require a foreign government or political subdivision to file its latest annual budget in its foreign language version in paper under cover of Form SE if no English translation thereof is available.

Form 6-K

Non-US issuers that are required to file periodic reports with the SEC must promptly furnish on Form 6-K material information about the issuer or its subsidiaries that the issuer: (i) makes public voluntarily or pursuant to the law of the jurisdiction of its domicile or incorporation; (ii) files with a stock exchange on which its securities are traded and which was made public by such exchange; or (iii) distributes to its security holders. Reports on Form 6-K must be provided to the SEC and each US stock exchange on which any security of the issuer is listed promptly after the requisite information is made public as described above. However, such reports are not deemed to be "filed" for the purpose of, or otherwise subject to the liabilities of, Section 18 of the Exchange Act.

Rule 12g3-2(b)

Generally, a foreign private issuer is required under Section 12(g) of the Exchange Act to register any class of its equity securities if the issuer has $10 million or more in assets on the last day of its most recent fiscal year and such security is held of record by 500 or more persons worldwide, including 300 or more persons resident in the US. Rule 12g3-2(b) under the Exchange Act provides an exemption from such registration requirements if the foreign private issuer has not obtained a US exchange listing or Nasdaq quotation and applies for the exemption within 120 days of the end of the year in which the thresholds are exceeded. To avail itself of the exemption, a foreign private issuer must furnish to the SEC, in its initial submission and on a continuing basis thereafter, any material information that it: (i) makes public in its home jurisdiction pursuant to the law of that country; (ii) files with any stock exchange on which its securities are listed; or (iii) distributes to its security holders.

Schedule 13D

Regulation 13D-G generally requires that each person (or group of persons acting together), whether domestic or foreign, acquiring any Exchange Act-registered voting equity securities as a result of which such person or group beneficially owns more than 5% of such securities file with the SEC a report on Schedule 13D and send copies to the issuer and the stock exchanges on which such securities are traded.

Schedule 13G

Instead of Schedule 13D, certain types of investors, under certain circumstances, each as enumerated in Rule 13d-1(b) under the Exchange Act, may qualify to file instead a short-form report on Schedule 13G. In addition, each person that directly or indirectly owns 5% or more of a class of Exchange Act-registered equity securities and that is not otherwise obligated to file a report on Schedule 13D or 13G (due to the lack of a purchase sufficient to trigger the filing requirement) is required under Rule 13d-1(d) to file a report on Schedule 13G.

Becoming Edgar-ready

Filers must take certain steps before they can begin submitting electronic filings under Regulation S-T. The Edgar Filer Manual provides detailed instructions on how to effect such a filing and can be downloaded from the SEC website or obtained in paper copy by request in writing or by phone at the addresses and number listed under Rule 301 of Regulation S-T.

Before effecting any electronic filing, each filer must submit in paper format with the SEC a Form ID, the uniform application for access codes to file through Edgar. Form ID may be downloaded from the SEC's website. Due to recent events in the US, the SEC is no longer accepting Form ID, nor returning a hard copy of the access codes, through the mail. All requests for access codes on Form ID must now be sent via fax to the SEC, and all notification of the codes will be made via telephone call. A written confirmation of the codes can be sent to an email address or fax number designated by the applicant.

Once the completed application on Form ID is processed, a filer is assigned five access codes:

central index key (CIK): a permanent, publicly available identification number for each entity that submits filings to the SEC, including Edgar and paper filers, registrants, third-party non-registrant filers and filing agents;
password: used in combination with the CIK for login identification when accessing Edgar. While the CIK is public, the password is strictly confidential and known and used only by the filer to establish its authority to submit filings through Edgar;
CIK confirmation code (CCC): used together with the CIK in Edgar submissions to identify the registrant. The CCC is generally confidential, but a registrant may give its CCC to a filing agent making submissions on the registrant's behalf. Therefore, when a filing agent submits a filing for a registrant, the agent uses its login CIK and password to establish authorization to make a submission, but must use the registrant's CIK and CCC in the submission in order to identify the registrant as the entity for which the submission is being made;
password modification authorization code (PMAC): enables the filer to change its password; and
certificate enrollment code (CEC): allows the filer to obtain an optional SEC-authorized digital certificate with the filer's name, a serial number and expiration dates. Certificates work like electronic passcards to verify an Edgar filer's identity and therefore provide an extra level of security during transmission over the internet. Once a certificate is installed and activated, a filer must continue to use the certificate, together with its CIK and password, whenever it logs onto Edgar.

Filers who would become subject to the electronic filing requirements of Regulation S-T once the SEC's proposed amendments become effective are strongly urged to submit a Form ID well in advance of the first required filing to facilitate timely filing.

In addition to access codes, a filer must also make sure that it is using computer hardware and software that is compatible with the Edgar system. The recommended minimum requirements include an IBM-compatible PC with a Windows 95 (or later) operating system, an internet browser, word processing or spreadsheet applications with the option to save documents as standard American Standard Code for Information Interchange (ASCII) or Hypertext Mark-up Language (HTML) text, and internet or direct dial access through a telephone or data line and a modem. Chapter One of the Edgar Filer Manual contains specifications as to processor, memory, hard drive storage space and internet browser requirements.

Once a filer has met the minimum system requirements, it must install the SEC's filing assembly software necessary to create, assemble and error-check a submission through Edgar. Modernized EdgarLink, Release 8.0 is the latest version of the Edgar software. When assembling an electronic submission, Modernized EdgarLink uses various templates consisting of sets of fields where filers enter requested information, such as form type, CIK, CCC, document or file names and email addresses. Both Modernized EdgarLink and the templates may be downloaded free of charge from the Edgar filing website. The SEC periodically distributes new versions of the EdgarLink software and the templates over the internet. Filers should pay particular attention to the welcome page when logging into the filing website to inform themselves of updates of the software and submission templates and download new versions as necessary. Chapter Three of the Edgar Filer Manual contains detailed instructions on how to download and install Modernized EdgarLink.

Formatting documents for Edgar

Under Rule 13(a) of Regulation S-T and pursuant to the formatting standards specified in the Edgar Filer Manual, all documents sent through Edgar must be converted into either ASCII or HTML. Both ASCII and HTML formats consist essentially of a set of "tags", ie identification marks that signal particular types or aspects of data that follow formatting instructions. Tags enable the SEC to readily identify certain information within a submission, such as the registrant's CIK and filing type, and allow the SEC and the public to effectively search the Edgar database by narrowing the parameters of such searches.

ASCII documents contain plain text and numbers and cannot contain any other images, styles or formats such as bold face, underlining, italics and special characters or symbols. Edgar recognizes a subset of standard ASCII characters, which are listed in the Edgar Filer Manual. If a document contains characters or commands outside of this set, Edgar may suspend the filing. HTML documents, on the other hand, contain platform-independent information — that is, the presentation of information is not constricted to a particular background application — and can therefore utilize a wide range of applications, including graphics, through the use of hypertext links.. HTML is familiar as the language most commonly used to create web pages on the internet. At present, many issuers submit their documents, including exhibits, in the ASCII format, but an increasing number are choosing the HTML format for its superior presentation and versatility.

However, the SEC has placed limitations on the use of HTML documents and hypertext links in Edgar submissions. Under Rule 105 of Regulation S-T, an electronic filer may not include in any HTML document hypertext links to sites, locations or documents outside the HTML document, except links to officially filed documents within the same submission, documents previously filed electronically and located in the Edgar database and different sections within that HTML document. If a filer includes an external hypertext link that is not prescribed by Rule 105, the information contained in the linked material will not be considered part of the document for determining compliance with reporting obligations, but the inclusion of the link will subject the filer to the civil liability and antifraud provisions of the federal securities laws with respect to the information contained therein.

In addition to the limitations on hypertext links contained in HTML documents, Rule 106 of Regulation S-T also prohibits electronic submissions containing executable codes, ie instructions in binary (machine language) or script form, to a computer to carry out operations that use features beyond the viewer's, reader's or internet browser's native ability to interpret and display HTML, Portable Document Format (PDF) and static graphic files. Under Rule 106, attempted submissions containing executable codes will generally be suspended, and if a submission containing executable codes has already been accepted, the SEC may delete from the Edgar system the entire submission or any document therein containing the executable codes. It may also require the filer to resubmit electronically replacement document(s) or the entire submission in compliance with Rule 106 and the Edgar Filer Manual. A note to Rule 106 reminds filers that a violation of Rule 106 or the relevant section in the Edgar Filer Manual may also be a violation of the Computer Fraud and Abuse Act of 1986.

The SEC's support capacity for HTML documents is quite limited, and Edgar only accepts documents that have been formatted using a subset of the HTML version 3.2 tags and some HTML version 4.0 attributes, as recommended and standardized by the World Wide Web Consortium (the W3C), the organization that adopted and maintains the tagging language format of HTML versions 3.2 and 4.0. Complete tag and attribute specification for HTML 3.2 can be found at the W3C's website. A filer can use any word processing programme with a "Save as HTML" option to create HTML documents, although these tools may not save the document in SEC-acceptable HTML 3.2/4.0 format. Due to the limitation on the SEC's support of HTML, Edgar enforces very specific formatting restrictions on all HTML documents included in an Edgar submission. Chapter Nine of the Edgar Filer Manual contains complete lists of acceptable HTML tags, tags not supported by Edgar, as well as specific SEC recommendations concerning the creation of SEC-approved HTML documents. Filers should follow these instructions closely should they choose to submit documents in HTML format.

Edgar also accepts documents in PDF as unofficial copies of documents contained in an electronic submission. Rule 104 of Regulation S-T requires that each unofficial PDF copy be substantively equivalent to its associated electronic document in the same submission. Unofficial PDF documents may not be submitted to Edgar without their official versions in ASCII text or HTML format and they must follow the official filing when attached in the submission. Edgar will suspend any filing containing only PDF documents.

Because the original format of a document is altered when it is being converted into an Edgar-acceptable format, a filer should always proofread an Edgar-ized document to make certain that no alteration or omission of its content has occurred. Because of the amount of time and effort required for Edgar-izing submissions, filers should familiarize themselves with the relevant formatting provisions in the Edgar Filer Manual, decide in which format they wish to submit their filings and begin Edgar-izing and proofreading the documents, including exhibits, well in advance of the filing deadline.

Once a filer has assembled all its documents with Modernized EdgarLink conforming to the technical formatting requirements, it can then connect to the Edgar filing website, log in with its CIK and password, and transmit the documents using its chosen transmission mode (see below). A filer can choose to receive acceptance or suspense messages at one or more specified email addresses by specifying the email address(es) in the submission template, or otherwise check its submission status on the filing website.

Sending documents through Edgar

There are four options for sending a document through Edgar. The first is over the internet — a filer can use its internet browser to access Edgar's filing website. Once logged onto the filing website with its CIK and password, a filer may then download form templates, send electronic submissions or otherwise communicate with Edgar.

The second option is through direct dial telecommunications lines using a modem. For a filer using any of the Windows-based operating systems, it must set up direct dial networking using a point-to-point protocol (PPP) application and dial an assigned number to connect with Edgar.

Filers may also make submissions using a leased line, an arrangement commonly used by filers making multiple submissions using a bulk filing template. Generally speaking, a leased line is a private 56 kbps line connecting to the SEC's operations centre, by which filers may submit documents directly to Edgar. Filers who wish to use leased line transmission should contact the SEC for the Leased Line Specification Document and must make specific arrangements to set up the connection.

Finally, submissions can also be made on magnetic tape cartridge. Chapter Eight of the Edgar Filer Manual specifies the tape media and formatting requirements for this type of transmission mode. All tape cartridge submissions must be accompanied by a Form ET in paper format (regardless of the number of filings), which provides information about the filer's CIK, the tape cartridge contents and a contact person. Form ET may be downloaded from the SEC's website.

Instead of transmitting the entire submission at one time, Rule 501 of Regulation S-T allows a filer to use modular submissions and make segmented filings. Modular submission of documents allows for the direct incorporation of such documents into any number of separate electronic filings. For example, a registrant may submit a module of its Operating and Financial Review and Prospects for a fiscal quarter to be incorporated into a Form F-3 registration statement as well as a Form 20-F under the Exchange Act. Up to 10 separate modular submissions not exceeding one megabyte of digital information in the aggregate may be stored in the Edgar non-public database for an unlimited time period.

Segmented filing is designed to help with the submission of voluminous data that may otherwise be too cumbersome to transmit at one time. An electronic filer may submit different segments of a particular filing, in no particular order and not limited in number or size, no more than six business days ahead of the filing date. The final segment should contain the assembling instructions pursuant to applicable provisions of the Edgar Filer Manual, whereby Edgar constructs the master filing from the various segments. The filing date of a segmented filing will be the date upon which a filing is assembled and satisfies the requirements of Rule 13(a) of Regulation S-T. Unlike modular submissions, segments are used only once and will remain on the Edgar database for only six business days. Both modular submissions and segments are not publicly available and will not be deemed filed for purposes of specified statutes until they have been incorporated into or otherwise made part of a master filing. Chapter Four of the Edgar Filer Manual contains instructions on how to make modular submissions and segment filings.

Conclusion

Mandated Edgar filers may wish to consider using a third party filing agent, such as a financial printer or their US counsel, instead of learning to become proficient with the electronic filing system themselves. It is our understanding that, as a practical matter, issuers who are already making electronic submissions almost always use financial printers for filings in connection with securities transactions and often do so for periodic reports furnished to the SEC pursuant to the requirements of the Exchange Act. However, they sometimes do the filings themselves or use their US counsel in the case of shorter filings such as pricing supplements to existing prospectuses and Schedules 13D and 13G.

It should not be too difficult for non-US issuers to make the transition to electronic filing if, as is likely, the recent SEC proposals to extend Edgar filing requirements to foreign governments and foreign private issuers are adopted. It would be advisable, nevertheless, for non-US issuers and their counsel to begin familiarizing themselves with Edgar before the amendments may be adopted in the coming months.