Beginning September 1, public companies will need to comply with SEC rule amendments requiring that reports and registration statements filed on or after that date:
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Include an active hyperlink to each exhibit listed in the exhibit index of the filing, and
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Be submitted in HyperText Markup Language (HTML) format.
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The amended rules, adopted on March 1, apply broadly to most filings by SEC reporting companies. The amendments will facilitate access to exhibits for investors and other users of information filed with the SEC via the EDGAR system. An EDGAR user currently wishing to access an exhibit must return to the filing page or search for the earlier filing from which the exhibit is incorporated by reference. Under the amended rules, users will be able to view an exhibit simply by clicking on the exhibit name in the index. In its adopting release for the rule amendments, the SEC explained that it is requiring the use of HTML format because the alternative filing format, American Standard Code for Information Interchange (ASCII), does not support hyperlinks.
The amended rules can be found in the SEC’s adopting release. Companies must comply with the rules for filings submitted on or after September 1, 2017. The rules also include a transition period until September 1, 2018 for compliance by non-accelerated filers and smaller reporting companies that submit filings in ASCII format.
Implementation of new exhibit hyperlinking requirements
To submit filings in accordance with the amended rules, companies should consider the following steps:
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Determine whether the filing is subject to the new requirements
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On and after September 1, 2017, registration statements and reports that are subject to the exhibit requirements in Item 601 of Regulation S-K, as well as in Forms F-10 and 20-F, will have to include exhibit hyperlinks and must be submitted in HTML format. The new requirements apply to the following SEC forms:
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Registration statements: (1) domestic company registration statements on Forms 10, S-1, S-3, S-4 and S-8; (2) real estate company registration statements on Form S-11; (3) foreign private issuer registration statements on Forms F-1, F-3 and F-4; and (4) asset-backed issuer registration statements on Forms SF-1 and SF-3.
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Periodic and current reports: (1) domestic company Forms 10-K, 10-Q and 8-K; (2) asset-backed issuer Form 10-D; and (3) foreign private issuer forms F-10 and 20-F.
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Non-U.S. companies and asset-backed issuers should note that:
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Although Forms F-10 and 20-F are subject to the rule amendments, the SEC has not extended these requirements to other forms under the multi-jurisdictional disclosure system used by Canadian issuers or to Form 6-K filed by foreign private issuers.
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The compliance date for hyperlinks in any Form 10-D that incorporates by reference asset-related documents on Form ABS-EE has been delayed until the completion of technical programming changes. The SEC will announce the compliance date for Form 10-D at a future time.
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Filings must be submitted in HTML format (subject to the transition period for eligible non-accelerated filers and smaller reporting companies).
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This requirement is unlikely to represent a change for most companies. The SEC’s adopting release notes that, based on 2015 data, less than 1% of filings made on the affected forms were in ASCII format.
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All companies may continue to file in ASCII format any schedules or forms not covered by the amended rules, such as the exhibits themselves and proxy statements on Schedule 14A.
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The SEC encourages compliance with the new requirements before the September 1 effective date.
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Link to each exhibit, whether filed concurrently or incorporated by reference
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Each filing subject to the rule amendments must include an active HTML hyperlink to each of the exhibits listed in the exhibit index (excluding XBRL exhibits and exhibits filed with Form ABS-EE, to which no hyperlink is required). This requirement will apply whether the exhibit identified in the index is (1) filed (or furnished) concurrently with the report or registration statement or (2) incorporated by reference from a previous filing.
Companies should keep in mind that:
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In accordance with existing SEC rules, they may hyperlink only to documents filed on EDGAR, and not to external websites.
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No hyperlink will be necessary for any exhibit that has been filed on paper (such as in accordance with a temporary or continuing hardship exemption). Companies will not be required to refile electronically any exhibits filed in paper form, but may do so at their option.
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Include hyperlinks in both initial filings and amendments
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Both an initial registration statement or report, and all amendments to the filing, must comply with the hyperlinking requirement.
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This directive includes the first filing of a registration statement through and including the version of the registration statement that becomes effective.
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When a company amends a filing, it must include hyperlinks to the exhibits required to be filed with the amendment.
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Consult the recently amended EDGAR Filer Manual for technical instructions
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When preparing a filing for submission, companies should consult the SEC’s technical guidance in the amended Volume II of the EDGAR Filer Manual (updated July 2017). Instructions on identifying exhibit links and hyperlinking to exhibits in previous filings and in the filing being submitted are found in Sections 5.4.2.1, 5.4.2.2 and 5.4.2.3 (pages 5-50 through 5-52).
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Correct nonfunctioning or inaccurate hyperlinks
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If a report or registration statement contains a nonfunctioning hyperlink or one that links to an incorrect exhibit, a company will be required to correct the filing as follows:
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For a registration statement before effectiveness, by filing a pre-effective amendment; or
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For (1) an effective registration statement or (2) an Exchange Act report, in the company’s next periodic report that requires, or includes, an exhibit under Item 601 of Regulation S-K (or, for foreign private issuers, in the next Form F-10 or Form 20-F). An effective registration statement also may be corrected, at a company’s election, by a post-effective amendment.
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The SEC noted in the adopting release that an inaccurate exhibit hyperlink alone would not:
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Render a filing “materially deficient” (which would cause the document to be treated as if it had not been filed); or
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Affect a company’s eligibility to file a short-form registration statement on Form S-3 or another applicable form.
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Present exhibit index before signature page
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The exhibit index of a registration statement or periodic or current report must appear before the signature page of the filing. This is a change from current SEC rules, which require an exhibit index to be located immediately before the exhibits.
Transition period for eligible non-accelerated filers and smaller reporting companies
Non-accelerated filers and smaller reporting companies that submit filings in ASCII format are entitled to a transition period permitting them to delay compliance with the rule amendments for up to one year after the general effective date, or until September 1, 2018. During this period, these companies may continue to submit filings in ASCII format and will not have to hyperlink to exhibits in their filings.
Additional considerations
With the effective date for the amendments approaching, legal and corporate secretarial departments may find it advisable to:
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Prepare early for their first filing on or after September 1 and confirm in advance all procedural requirements their outside vendor or internal EDGAR filing team may have for including hyperlinks in filings; and
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Verify the Internet address (URL) corresponding to each of the exhibits identified in the exhibit index before filing.
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In light of obligations relating to disclosure controls and procedures, including management evaluation and certification requirements, companies should implement methods ensuring that accurate hyperlinks are compiled and included in SEC filings in a timely and compliant manner.
