Harrington Channing Industries is planning its IPO, and the GC, Mary Orr, has various questions about how EDGAR works.

When is EDGAR awake?

EDGAR accepts electronic filings on weekdays from 6:00 a.m. to 10:00 p.m.,¹ excluding federal holidays. On these filing days, EDGAR will accept a filing that is fully transmitted before 10:00 p.m. However, EDGAR goes to sleep at exactly 10:00 p.m. and may bounce the filing if the transmission is incomplete when the clock strikes 10:00 p.m. If that happens, you would have to wait for EDGAR to wake up again at 6:00 a.m. As a result, if you have a filing that must occur by 10:00 p.m., you should push the button no later than 9:45 p.m.

For more background on filing preparation issues, see the EDGAR Filer Help Sheet and the EDGAR Filer Manual (March 2009).

How does EDGAR’s 5:30 p.m. filing cutoff work?

EDGAR filings must occur by 5:30 p.m. (when the SEC officially ends its business day) to receive the same-day filing date. Everyone should also know that there are three limited exceptions to the 5:30 p.m. cutoff – more on this point below.

The 5:30 p.m. cutoff has important consequences because it can determine whether an SEC filing is timely, which in turn can affect Form S-3 eligibility and WKSI status, not to mention investors’ perceptions of an issuer.

• A filing transmission that begins before 5:30 p.m. is deemed filed on that same day.
• A filing transmission that begins after 5:30 p.m. will be deemed filed on the next business day (when the filing will also become publicly available online) – even though EDGAR has accepted the filing and the document is publicly available online through the EDGAR system.

See Rule 13(a) of Regulation S-T. For example, if an accelerated filer with a December 31 year-end pushed the button on the EDGAR filing of its annual report on Form 10-K at 5:31 p.m. on the March 15 deadline, EDGAR would accept the filing on March 15, but the filing date of the 10-K would be March 16. Or, simply put, a day late (and a dollar short).

Three types of filings are not subject to the 5:30 p.m. cutoff and will receive a filing date identical to the received date up to 10:00 p.m. These three exceptions are:

• immediately effective registration statements or post-effective amendments filed to register additional securities under Rule 462(b), used when a deal is upsized;
• Section 16 beneficial ownership reports on Forms 3, 4 and 5; and
• correspondence filings (e.g., correspondence related to draft registration statements submitted for nonpublic review, comment response letters and requests for acceleration of effectiveness).

See Rule 13(a)(3) of Regulation S-T; Release No. 33-7168 text accompanying note 29 (discussing Rule 462(b) registration statements); Release No. 33-8230 text accompanying note 95 (discussing Forms 3, 4 and 5); Index to Forms § 3.2 at 317 (identifying each of the 17 EDGAR submission types within these three categories).

Again, remember that filings must be completed to meet the 10:00 p.m. cutoff, whereas they need only be initiated to meet the 5:30 p.m. cutoff.

How quickly do completed EDGAR filings appear on the SEC website?

Between 6:00 a.m. and 5:30 p.m., EDGAR filings other than correspondence appear on the SEC website almost immediately after electronic acceptance. Occasionally, in times of heavy filing volume, there is a minor delay (usually a matter of minutes) between the acceptance on EDGAR and posting on the website. Although a filing transmission that begins after 5:30 p.m. will be accepted by EDGAR, the filing will not be publicly available online through the EDGAR system until 6:00 a.m. the next business day, which will also be the official date of the filing.

EDGAR correspondence filings are not posted on the SEC website until weeks after the fact. The SEC Staff’s policy is to make correspondence public not earlier than 20 business days after the Staff has completed its related review of an issuer’s filings. See Division of Corporation Finance Filing Review Process.
Redacting personal information in exhibitsAn issuer is preparing to file a material agreement as an exhibit to a periodic or current report. The agreement includes personal identifying information (e.g., social security numbers, tax identification numbers, bank account numbers and unpublished telephone numbers or email addresses). For obvious privacy and fraud-protection reasons, the affected individuals do not want this personal information to become publicly available on EDGAR.

Can the issuer redact this information?

Yes. This type of sensitive personal data should not be included in an SEC filing, and an issuer may redact any personally identifying information that would "constitute a clearly unwarranted invasion of personal privacy." See Regulation S-K, Item 601(a)(6). Market practice is to replace highly sensitive personal identifying information (e.g., a SSN, bank account number, or home address) with a “#” sign for each redacted number or letter. For example, a social security number could be indicated in the filing as ###-##-####. 

Bear in mind that a filing on EDGAR may be picked up by services that take EDGAR data and repackage it, so sensitive personal data can spread well beyond the SEC’s website. It is always a good idea to watch for sensitive personal identifying information in filings. If you discover that this type of information has mistakenly been included in a filing, we need to talk.
Exhibits to exhibitsWhat if the information is contained in an attachment or schedule to the agreement? Can the issuer just omit the entire schedule or attachment from the agreement that will be filed as an exhibit?

Regulation S-K Item 601(a)(5) permits the omission of “schedules (or similar attachments)” unless the schedules contain information that is material to an investment decision and not otherwise disclosed in the agreement or the related SEC disclosure document. Where schedules or attachments are omitted, the filing must briefly identify the contents of all omitted schedules and indicate that a copy of any omitted schedule will be furnished supplementally to the SEC upon request.

If Item 601(a)(5) is not available, the issuer would likely have a difficult time justifying the wholesale omission of an exhibit to an to a material contract. However, under Item 601(b)(10)(iv), the issuer could redact information that is immaterial to investors and disclosure of which would result in competitive harm to the issuer. This accommodation is also available under Item 601(b)(2) for any "material plan of acquisition, disposition, reorganization, readjustment, succession, liquidation or arrangement." The SEC Staff may ask the issuer to provide an unredacted copy of the exhibit on a supplemental basis, and may also subsequently request the issuer's materiality and competitive harm analyses to support the redactions.
What if a company sends its registration statement on Form S-3 to the printer and, due to a strange and unforeseeable series of events, only half of the document is filed or the risk factors are left out? Is the company subject to liability for the transmission error?

No. Rule 103 of Regulation S-T provides that the filer is not subject to the liability and anti-fraud laws of the securities laws with respect to errors or omissions in an electronic filing resulting solely from electronic transmission errors beyond the control of the filer. However, the filer must correct the error or omission by electronically fling an amendment as soon as reasonably practicable after becoming aware of the error or omission.
Can a company include an active hyperlink in its annual report on Form 10-K to its company website?

Putting aside the question of whether this is advisable for other reasons (such as liability implications), Rule 105 of Regulation S-T does not permit an active hyperlink to sites, locations or documents outside of the filing, except to links to officially filed documents within the submission and to documents previously filed electronically and located in the EDGAR database on the SEC’s website. Note that this hyperlink prohibition is distinct from merely providing the company’s internet address, which is encouraged. See Item 101(e)(3) of Regulation S-K.
Can a company include a hyperlink to another part of the filing?

Yes. Rule 105 explicitly permits electronic filers to include hyperlinks to different sections within a single document.

In that case, the filer may (for certain filings) use a temporary hardship exemption under Rule 201 of Regulation S-T, which allows the electronic filer to submit a paper filing under the cover of Form TH if the filer experiences unanticipated technical difficulties preventing the timely preparation and submission of an electronic filing. The cover page of the paper format document should bear the following legend:

IN ACCORDANCE WITH RULE 201 OF REGULATION S-T, THIS (SPECIFY DOCUMENT) IS BEING FILED IN PAPER PURSUANT TO A TEMPORARY HARDSHIP EXEMPTION.

See the text of Rule 201 for other requirements as well. Note that in this situation, the filer should not use Form 12b-25 as a notification of late filing. Further, if the temporary hardship exemption only relates to an exhibit, then submit the paper filing under Form SE.

Phew. Will the company need to file the electronic version too?

Yes. An electronic version must be submitted to the SEC within six business days of filing the paper format, with the following legend on the first page: 

THIS DOCUMENT IS A COPY OF THE (SPECIFY DOCUMENT) FILED ON (DATE) PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.

What if the company only experiences unanticipated technical difficulties preventing timely preparation and submission of an interactive data file?

See Rule 201(c), which provides that the filer may still satisfy the requirement to submit the interactive data file in a timely manner by substituting for the interactive data file exhibit in the filing a document with the legend set forth in Rule 201(c) and also submitting the interactive data file no later than six business days after it was due. The six-business day requirement also extends to posting the interactive data file on the company’s web site.
What if the company anticipates experiencing technical difficulties for more than six business days? What then?

You can apply in writing for a continuing hardship exemption under Rule 202 of Regulation S-T if all or part of the filing cannot be filed without undue burden or expense. The written application must be made at least 10 business days before the due date (or within a shorter period if permitted) and must contain:

• the reasons that the necessary technology is not available without unreasonable burden and expense;
• the burden and expense involved to employ alternative means to make the electronic submission; and/or
• the reasons for not submitting electronically and a justification for the requested time period.
  
The SEC will notify the filer if the application is granted. Once the application is granted, the paper filings will need to have the legends set forth in Rule 202. 

What about exhibits to an electronic filing – do these need to be EDGARized as well?

Yes. Exhibits and amendments to exhibits to electronic filings must be filed in electronic format (absent a hardship exemption). See Rule 102 of Regulation S-T.

If you want to do a deep dive on paper versus electronic filings, this WoW has you covered.

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¹  All references are to time in Washington DC.