On March 1, 2017, the U.S. Securities and Exchange Commission adopted final rules that require companies to include an active hyperlink to each exhibit in the filing’s exhibit index, including exhibits incorporated by reference to other filings.1
The new rules are intended to make finding and accessing exhibits easier for investors and other market participants by allowing them to click a hyperlink and navigate directly to exhibits included in the current filing, as well as those incorporated by reference to prior filings. The current system required someone seeking to retrieve and access an exhibit incorporated by reference to a prior filing to review the exhibit index and then separately find the previous filing.
Under the new rules, registrants will be required to correct nonfunctioning or incorrect hyperlinks (a) by pre-effective amendment, in the case of a registration statement that is not yet effective, or (b) in the next Exchange Act periodic report that requires or includes an exhibit pursuant to Item 601 of Regulation S-K (or, for foreign private issuers, pursuant to Forms 20-F or F-10), in the case of effective registration statements or Exchange Act reports. The SEC indicated that where a filing contains an inaccurate exhibit hyperlink, the inaccurate hyperlink would not by itself render the filing materially deficient or affect a registrant’s eligibility to use short-form registration statements.
The new rules affect filings on Forms 10-K, 10-Q, 8-K, S-1, S-3, S-4, S-8, S-11, 10, 20-F, F-1, F-3, F-4, F-10, SF-1, SF-3 and 10-D.2 For registration statements, exhibit hyperlinks must be included in the initial registration statement and in each subsequent pre-effective amendment. However, the SEC will not require exhibit hyperlinks in other forms under the multi-jurisdictional disclosure system used by Canadian issuers or in Form 6-K.
The SEC will be issuing an updated EDGAR Filer Manual that will describe the procedures needed to create a hyperlink to an exhibit that the registrant previously filed and the procedures needed to create a link to an exhibit that is being filed at the same time as the registration statement or report. We encourage companies that prepare and handle EDGAR filings internally to test and update their filing software systems as necessary to ensure that their filings can include functioning hyperlinks after the applicable deadline for compliance.
The rules generally take effect for filings submitted on or after September 1, 2017, although early compliance is encouraged. Compliance by non-accelerated filers and smaller reporting companies that submit filings in ASCII format is not required until September 1, 2018.
1A limited exception applies for exhibits incorporated by reference that were not filed with the SEC in electronic format, i.e., paper filings. Those exhibits need not be hyperlinked. See Instruction 1 to Rule 105(d) under Regulation S-T.
2For certain filings on Form 10-D, a separate phase-in period applies so that the SEC staff can work on programming changes to EDGAR that will allow issuers to include the Form 10-D and Form ABS-EE in a single submission so that the required hyperlinks can be created at the time the Form 10-D is filed. The SEC will publish on its website and in the Federal Register the compliance date for Form 10-D once determined.