Q: In addressing the signature requirements for filings with the SEC, '34 Act Rule 12b-11(d), Reg. S-K, 601(b)(24) (re: powers of attorney) and Reg. S-T, 302(b) speak of signature pages, powers of attorney (in the case of Reg. S-K, Item 601(b)(24)) or other documents being MANUALLY signed. Can a power of attorney relating to the signing of an SEC filing be executed with an electronic signature only? (For example, many electronic board portal products allow directors to sign documents, e.g, consents, powers of attorney, etc. via electronic signature.)
RE: There’s a 2001 SEC release with the last guidance from the SEC on the use of electronic signatures.
-Broc Romanek, Editor, TheCorporateCounsel.net 1/13/2012
RE: I recently had discussions with the SEC Staff on this point. Their view is that "manually signed" means paper.
-8/21/2013
RE: I note a similar Q&A in TheCorporateCounsel's handbook relating to exhibits.:
Powers of Attorneys & Signatures
Question: Can a power of attorney relating to the signing of an SEC filing be executed with an electronic signature only? (For example, many electronic board portal products allow directors to sign documents, e.g., consents, powers of attorney, etc. via electronic signature.)
Answer: The requirements for signatures on powers of attorney (i.e., Item 601(b)(24)) calls for manual signatures. The SEC Staff’s view is that “manually signed” means paper.
However, this Q&A talks about the execution of the power of attorney. If the power of attorney is manually signed by the officers and directors, does a PDF of the manually signed copy need to be filed as Exhibit 24, or can an EDGAR version with conformed signatures be filed? I note that Item 601(b)(24) seems to require that a manually signed copy be filed; however, I have many examples of Exhibit 24s that are EDGAR versions with conformed signatures.
Would greatly appreciate your thoughts.
-2/16/2015
RE: On a related note, do powers of attorney executed for Exchange Act periodic reports (e.g., directors signing a power of attorney granting power to execute the Form 10-K and amendments there) need to meet state law requirements for powers of attorney? Practices in this area seem to differ (I saw some Exhibit 24s with notaries, some with witnesses, and some with neither), but state law requirements vary from jurisdiction to jurisdiction, so without doing too much research, it's hard to tell which registrants are complying with state law requirements. On a related note, Romeo & Dye's Treatise points to instructions on the Forms 3, 4 and 5 relating to requirements for powers of attorney for executing those forms, and takes the position that state law requirements need not be met. I do not see a similar instruction on Form 10-K, however.
Your thoughts would be appreciated!!
-2/16/2015
RE: For your first query, see Item 302(b) of Regulation S-T, reproduced below:
§232.302 Signatures.
(a) Required signatures to, or within, any electronic submission (including, without limitation, signatories within the certifications required by §§240.13a-14, 240.15d-14 and 270.30a-2 of this chapter) must be in typed form rather than manual format. Signatures in an HTML document that are not required may, but are not required to, be presented in an HTML graphic or image file within the electronic filing, in compliance with the formatting requirements of the EDGAR Filer Manual. When used in connection with an electronic filing, the term “signature” means an electronic entry in the form of a magnetic impulse or other form of computer data compilation of any letters or series of letters or characters comprising a name, executed, adopted or authorized as a signature. Signatures are not required in unofficial PDF copies submitted in accordance with §232.104.
(b) Each signatory to an electronic filing (including, without limitation, each signatory to the certifications required by §§240.13a-14, 240.15d-14 and 270.30a-2 of this chapter) shall manually sign a signature page or other document authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing. Such document shall be executed before or at the time the electronic filing is made and shall be retained by the filer for a period of five years. Upon request, an electronic filer shall furnish to the Commission or its staff a copy of any or all documents retained pursuant to this section.
(c) Where the Commission's rules require a registrant to furnish to a national securities exchange or national securities association paper copies of a document filed with the Commission in electronic format, signatures to such paper copies may be in typed form.
-Broc Romanek, Editor, TheCorporateCounsel.net 2/17/2015 RE: Thanks! Any thoughts on complying with the state law requirements for powers of attorney?
-2/17/2015
RE: It's a challenging issue. There is this paragraph from the SEC's 2001 interpretive release related to e-sign that supports the position that state law isn't implicated:
"We believe that these requirements to retain authentication documents are not subject to E-SIGN because authentication documents are records generated principally for governmental purposes rather than in connection with a business, consumer or commercial transaction. Moreover, these authentication documents arise in the context of a governmental filing. Governmental filings are expressly excluded from E-SIGN. Accordingly, issuers subject to these retention requirements should continue to retain the paper original of all authentication documents."
You may remember the flap a few years ago when New York adopted a broad power of attorney statute that said it applied to "any" POA executed in NY, and NY lawyers went crazy saying SEC filings would now be invalid because they were signed pursuant to the standard SEC power language included on the page of the filing that appoints some officer to file subsequent amendments (or Forms 4).
I believe that the SEC decides what constitutes adequate authority to sign SEC reports, not the 50 states. However, the language might not be as clear in some of the SEC's rules as compared to what Alan Dye thinks is in the Section 16 rules. Alan says in his Section 16 Treatise that state law requirements for powers of attorney don't govern Section 16 signature requirements.
-Broc Romanek, Editor, TheCorporateCounsel.net 2/17/2015
RE: Has anyone had any recent experience, discussions with the SEC staff, that they are more amenable to directors in their usual board portal procedure that provides for authorization of their electronic signatures to be used for execution of the signature page of a Registration Statement or power of attorney relating thereto? Please advise. It seems nonsensical with EDGAR and e-sign and what they are allowing in the B/D-client context to require a wet manual signature in the Registration Statement context. Thanks.
-3/10/2020
RE: I'm very interested in this question of using a board portal — which stores a manual, if not "wet," signature — for SEC filings, particularly given the SEC's late-March guidance relaxing signature requirements in light of COVID-19. Appreciate any thoughts.
-4/17/2020
RE: I have heard anecdotally that the Staff has informally advised some registrants that Rule 302(b) of S-T's requirements may be satisfied through the use of board portal procedures. Here's an excerpt from this recent Bass Berry blog on the Staff's new guidance:
"While this record retention relief is welcomed by registrants and practitioners, it stops short of offering maximum flexibility to registrants by saying that a “manual signature” can be satisfied through the usual board portal procedure that provides for authorization of a director’s electronic signature on the signature page of an Exchange Act report or Securities Act registration statement. We understand practice is mixed in this regard, with some practitioners relying on past verbal comfort from the Staff that using board software packages to execute SEC filings satisfied the “manual signature” requirement."
-John Jenkins, Editor, TheCorporateCounsel.net 4/17/2020