Partner New York
"Shareholders with more than 5% of the publicly traded stock must make filings, as well as, in certain circumstances, directors and executive officers of the public company."
In addition to public companies making filings with the U.S. Securities and Exchange Commission (the “SEC”), shareholders with more than 5% of the publicly traded stock must make filings, as well as, in certain circumstances, directors and executive officers of the public company. Oftentimes, these filings must, by regulation, be filed in a short timeframe.
For a person to first be able to file documents with the SEC (including as a shareholder, director or executive officer of a public company), they must first become an eligible ‘filer’ with the SEC by submitting a Form ID to the SEC electronically on the EDGAR Filer Management website. A person wishing to become a filer with the SEC – who must apply for the relevant permission to file – is called an ‘Applicant’. The Form ID application includes basic information about the Applicant and is signed by an ‘authorized individual’¹ of the Applicant, with the signature notarized. The signed and notarized Form ID, and, if applicable, power of attorney, must be uploaded to the EDGAR Filer Management website for the SEC’s review. After SEC review, assuming all the documents and information is in order, the SEC will permit the Applicant to become a filer and issue relevant filing codes, after which the Applicant can file documents with the SEC.
Foreign Applicants, and Applicants with authorized signatories that are not in the United States or U.S. citizens, are not exempt from the notarization requirement. Having a document notarized outside of the U.S. is not always a simple, quick or inexpensive task, unlike in the United States where obtaining a notary stamp is typically quick, easy and inexpensive. Historically, there was a workaround where, through the use of a unnotarized power of attorney and letter, the notarization was given by the U.S. lawyer on a cover letter, thus avoiding any requirement for a foreign notarization or a notarization by the Applicant. However, this workaround is no longer accepted by the SEC. The Form ID application, or the relevant power of attorney granting authorization to another authorized individual, must be signed and notarized by the Applicant. If the Applicant or its authorized signatory is outside the United States, then a foreign notary may be required.
Use of a U.S. remote online notary public
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"Foreign Applicants and their authorized signatories are permitted to use a remote online notary public, or remote notary, recognized by the law of any state or territory of the United States or the District of Columbia."
Foreign Applicants and their authorized signatories are permitted to use a remote online notary public, or remote notary, recognized by the law of any state or territory of the United States or the District of Columbia. A remote notary is a commissioned notary public who performs notarizations over the internet, instead of meeting in person. The signer and the notary connect via a secure platform, after which the notary will verify the signer’s identity, witness the signature on an electronic document and complete the notarial act with an electronic seal and digital certificate. Several providers claim on their websites to offer online U.S. remote notarization services for people outside the United States and who are not U.S. citizens. Foreign Applicants may alternatively use the foreign local equivalent of a notary public.
Conclusion
Applicants, including those based outside of the United States, must directly obtain notarization of their applications to become SEC filers. Potential Applicants should engage with foreign notaries or find an online notary who is willing to notarize the relevant document. Applicants should be aware of this requirement, and the potential additional time it will take to obtain the relevant notarization, in order to file the application materials with the SEC and subsequently receive SEC filing codes in a timely manner.
Footnotes
[1] An “authorized individual” is an individual with the authority to legally bind an entity or individual for purposes of Form ID, or an individual with a POA from an individual with the authority to legally bind an entity or individual for purposes of Form ID. The signature on the POA must be notarized.
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