KMK Law Corporate & Securities Blog

On November 2, 2016, the Securities and Exchange Commission (“SEC”) published new guidance in the form of a Compliance and Disclosure Interpretation (“C&DI”) on the requirement that registrants submit copies of their annual report to the SEC for information purposes.[1]  Specifically, under the new guidance, a company may satisfy the requirement by posting an electronic version of its annual report on its website “by the dates specified in Rule 14a-3(c) [the date the annual report is sent to shareholders], 14c-3(b) [the annual report must precede or accompany proxy materials] and Form 10-K respectively, in lieu of mailing paper copies or submitting it on EDGAR,” so long as the report remains available on the company’s website for at least one year. 

Rule 14a-3(c) and Rule 14c-3(b) under the Securities Exchange Act of 1934 require registrants to mail to the SEC, “solely for its information,” seven copies of the annual report sent to security holders.  Similarly, Form 10-K requires certain Section 15(d) registrants to furnish to the SEC “solely for its information” four copies of “[a]ny annual report to security holders covering the registrant’s last fiscal year.”  In its recent C&DI, the SEC clarifies that registrants may satisfy these requirements “by means other than physical delivery or electronic delivery” to the SEC.

With respect to compliance with NYSE Rule 402, note that the NYSE does not consider annual reports to be part of the proxy materials so they do not have to be sent to the NYSE.

[1] See Securities and Exchange Commission Division of Corporation Finance, Compliance & Disclosure Interpretation, “Proxy Rules and Schedule 14A (Regarding Submission of Annual Reports to SEC under Rules 14a‑3(c) and 14c-3(b))” (Nov. 2, 2016).