Determine Whether Stock Purchase Plan Qualifies as Broad-Based
Update Holdings under DRIPs and Tax-Conditioned Plans if Otherwise Reporting a Table I Transaction
Identify Any Discretionary Transactions
Do Not Include Post-Year-End Transactions in Form 5
Utilize Aggregate Reporting Where Appropriate
Obtain Signed Forms 5 or Powers of Attorney
File Forms 5 by Due Date
Post Section 16 Reports on Issuer’s Website
Consider Instructing Insiders to Submit Reports to Company Electronically
Prepare Any Proxy Statement/Form 10-K Disclosure Required Under Item 405
Identify and Disclose Delinquent Transactions
Disclose Failure to Obtain “No Filing Due” Certificate
Include Disclosures under Separate Caption
Determine Whether Box on Cover Page of Form 10-K Should be Checked
Have Board of Directors Approve List of Section 16 Officers
Review Eligibility of Compensation Committee Members as Non-Employee Directors
This memorandum is intended to help companies and compliance officers integrate the Section 16 compliance program with the company’s processes for gathering information for the proxy statement, Form 10-K, and annual report to shareholders relating to the year ending December 31.) The discussion below supplements, and explains each of the items listed on, a summary checklist for the Section 16 compliance element of the year-end process. A copy of the checklist appears separately in the compliance materials posted on this website.
Reports Must be Filed Electronically
All Section 16(a) reports, including Form 5, must be filed electronically. The electronic filing system for Section 16(a) reports is web-based and is exclusively for use in filing Section 16(a) reports. Section 16(a) reports may not be filed using the EDGARLink system, which is the filing medium for other electronic filings. Reports may be prepared and filed directly on the SEC’s website, or by using third-party software offered by any of many vendors who service the Section 16 community. Insiders of certain banks and other financial institutions who file reports with the federal banking agencies must file their Section 16 reports using FDICconnect instead of EDGAR.
Every insider must have his or her own EDGAR access codes to file electronically. An insider may not instead use the company’s EDGAR codes, or the codes of a joint filer. Accordingly, the compliance officer should make sure that all steps have been taken on behalf of the insider to assure that he or she has the EDGAR access codes required to assure access to the electronic filing system.
The required access codes consist of a Central Index Key (“CIK”) number, a CIK Confirmation Code (“CCC”) number, a password, a password modification authorization code, and a passphrase. An insider may apply for access codes by filing a Form ID, electronically, with the SEC. Companies or compliance officers also may apply for codes on behalf of their insiders, if the person signing the Form ID has a power of attorney authorizing him or her to apply on behalf of insiders. A compliance officer must submit a separate Form ID for each insider for whom access codes are sought. Form ID must be submitted electronically. Until 2009, the electronic filing had to be followed up with faxed copy, manually signed and confirming the authenticity of the electronically filed copy. Now, however Form ID and the related EDGAR rules require filers to attach a PDF version of the authenticating document to the electronically filed Form ID. The SEC has posted on its website a fillable PDF version of Form ID that filers can use to create and print the authenticating document.
The preparation and filing of Section 16(a) reports is addressed in Volumes I and II of the EDGAR Filer Manual. In the event of filing problems, the SEC has specialized personnel available to help. Technical questions about EDGAR should be directed to the EDGAR Filer Support Office at (202) 551-8900. Questions requiring an interpretation of the EDGAR rules should be directed to the Office of Information Technology in the Division of Corporation Finance at (202) 551-3600.
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