On November 2, the Division of Corporation Finance (Division) of the Securities and Exchange Commission issued a new Compliance and Disclosure Interpretation (C&DI) regarding a registrant’s submission to the SEC of its annual report that it must send to shareholders with its annual meeting proxy statement (or information statement) under Securities Exchange Act of 1934 Rule 14a-3(c) or 14c-3(b) (Exchange Act Rules).
Under the current Exchange Act Rules, a registrant must mail to the SEC, “solely for its information,” seven copies of the annual report to its security holders (or submit such report to the SEC via the SEC’s online EDGAR filing system). Such reports must be mailed (or submitted electronically) to the SEC no later than the date on which preliminary copies (or definitive copies, if preliminary filing was not required) of solicitation material are filed with the SEC, whichever date is later. A similar provision in Form 10-K requires certain Section 15(d) registrants to furnish to the SEC “for its information” four copies of any annual report to security holders. It should be noted that the annual report to shareholders requirement is now commonly satisfied by use of the Form 10-K that has already been filed with the SEC, sometimes with a “10-K wrap,” rather than through a separate “glossy annual report,” so the mailing to the SEC of the annual report in such cases is superfluous.
The new C&DI explains that the “Division will not object if a company posts an electronic version of its annual report to its corporate website” by the dates specified in the applicable rules and Form 10-K, respectively, in lieu of mailing paper copies to the SEC or submitting the report via EDGAR. As long as the annual report remains accessible for at least one year after its initial posting, the Division staff will consider it “available for its information” (satisfying the “solely for its information requirement” in the Exchange Act Rules).
The complete C&DI can be found here.