Harrington Channing Industries is planning its IPO and the GC, Mary Orr, inquires whether the company needs to file its registration statement on Form S-1 electronically on EDGAR or by a paper filing submitted to the SEC. Mary then asks what filings will need to be made electronically after the company goes public.

In a previous installment we discussed general facts about electronically filing on EDGAR, and we should of course alert Mary to those points.

However, in terms of paper vs. electronic filings, it’s a mixed bag.

The place to start is Regulation S-T, which trumps both Securities Act Rule 402 and Exchange Act Rule 12b-11, to the extent Regulation S-T mandates or permits electronic filing. See Rule 309. Thus, for example, notwithstanding Rule 402(a), a registrant filing a Form S-3 does not need to file with the SEC “three complete copies of the complete registration statement” that are “bound, in one or more parts, without stiff covers.” Instead, the registrant files the Form S-3 electronically on EDGAR, pursuant to Regulation S-T. The same goes for Exchange Act reports, which registrants file electronically despite Rule 12b-11’s requirement to provide “three complete copies of each statement or report” to the SEC.

Under Rule 100 of Regulation S-T, most issuers are subject to the electronic filing requirements of Regulation S-T – including companies subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act. Rule 101 of Regulation S-T sets forth the filings that must (e.g., registration statements and periodic reports), may (e.g., glossy annual reports) and may not (e.g., confidential treatment requests) be electronically filed through EDGAR. We discuss each of these below.
Mandatory EDGAR filings

Certain filings must be submitted electronically through EDGAR. These filings will not be accepted in another format unless the filing satisfies the requirements for a temporary or continuing hardship exemption (see Rule 14 of Regulation S-T). These mandatory electronic filings include:

• registration statements and prospectuses;
• statements, reports and schedules under Section 13, 14 or 15(d) of the Exchange Act (including periodic reports, current reports, proxy materials, Schedule 13Ds and Schedule TO, among others);
• statements and applications filed with the SEC under the Trust Indenture Act (except for applications for exemptive relief);
• Form D;
• Form CB (and Form F-X when filed in connection with Form CB);
• Form ID, though the authenticating document may be uploaded as a PDF attachment, and other related correspondence and supplemental information submitted after the filing should not be in electronic format;
• Form 25; and
• Forms 15 and 15F.

Either way is fine – the choice is yours

Other filings may be submitted electronically on EDGAR or by paper, at the option of the filer. These permitted electronic submissions include:

• annual reports to security holders;
• Form 11-K;
• Form 144; and
• Form F-X if filed by a Canadian issuer under certain circumstances.

Some things not to EDGARize

Finally, some filings must not be submitted via EDGAR:

• confidential treatment requests and any specific information for which confidential treatment is requested;
• preliminary proxy materials and information statements for which confidential treatment has been requested;
• supplemental information if the submitter requests protection of the information from public disclosure under FOIA pursuant to a confidential treatment request under Rule 83 or if the submitter requests that the information be returned after SEC Staff review (pursuant to Securities Act Rule 418(b) or Exchange Act Rule 12b-4);
• shareholder proposals and related correspondence under Rule 14a-8;
• no-action and interpretive letter requests;
• ADR registration statements on Form F-6;
• applications for exemptive relief under the Trust Indenture Act; and
• filings on Form 144 where the issuer is not subject to Exchange Act reporting requirements.