United States: SEC Adopts Exhibit Hyperlink Requirement

Ira N. Rosner is a partner in Holland & Knight's Miami office Kristin Padgett is an associate in Holland & Knight's Tampa office.

HIGHLIGHTS:

  • The U.S. Securities and Exchange Commission has adopted amendments (final rules) that will require registrants to include hyperlinks to exhibits.
  • The final rules apply to certain periodic reports under the Securities Exchange Act of 1934, as amended, and registration statements under the Securities Act of 1933, as amended, filed on or after September 1, 2017.
  • Holland & Knight's Public Companies and Securities Team explores the final rules in this client alert.

Background

The final rules arose from the current, tedious method of locating exhibits incorporated by reference in U.S. Securities and Exchange Commission (SEC) reports and registration statements. Currently, to locate an exhibit that has been incorporated by reference, the exhibit index must be reviewed to determine the filing in which the exhibit was originally included, and then the registrant's filings must be searched to locate the relevant filing. As the SEC noted in its adopting release, this process can be both time-consuming and cumbersome. Under the final rules, exhibits will be hyperlinked1, which allows review of the exhibit by simply clicking the hyperlink. The final rules will affect all registrants that file registration statements and reports that are required to include exhibits under Item 601 of Regulation S-K, specifically Forms S-1, S-3, S-4, S-8, S-11, SF-1, SF-3, F-1, F-3 and F-4 under the Securities Act of 1933, as amended (Securities Act), and Forms 10, 10-K, 10-Q, 8-K and 10-D under the Securities Exchange Act of 1934, as amended (Exchange Act), as well as Forms F-10 and 20-F. To facilitate hyperlinks, those issuers that are required to comply with the new rule must file their registration statements and reports in HTML format rather than ASCII. In addition, the SEC has issued an updated Electronic Data Gathering, Analysis and Retrieval (EDGAR) Filer Manual that includes technical amendments to implement the hyperlink requirements.

Timing

Most registrants must comply with the final rules for filings submitted on or after September 1, 2017, although the SEC is encouraging early compliance with the new filing requirements.

The registrants listed below do not need to comply with the final rules until September 1, 2018:

  • a registrant that is a "smaller reporting company" as defined in Securities Act Rule 405 and Exchange Act Rule 12b-2, and that submits filings in American Standard Code for Information Interchange (ASCII)
  • a registrant that is neither a "large accelerated filer" nor an "accelerated filer," as defined in Exchange Act Rule 12b-2, and that submits filings in ASCII

Additionally, there is a phase-in period for certain filings on Form 10-D. The SEC staff is making technical programming changes to EDGAR to allow issuers to include both Form 10-D and Form ABS-EE in a single submission. The compliance date for these forms has been delayed.

Certain Mechanics

  • Initial filings and pre-effective amendments. The exhibit hyperlink requirement will apply to the initial registration statement and each subsequent pre-effective amendment filed with the SEC, rather than only to the final, effective amendment.
  • All exhibits. The final rules require hyperlinks in the exhibit index to exhibits filed on EDGAR at the time the registration statement or report is filed, regardless of whether the exhibit is incorporated by reference. In other words, hyperlinks are required for all exhibits that are being filed with a registration statement or report (as opposed to only being required for exhibits incorporated by reference).
  • HTML format. The final rules require that registrants submit all such filings in HyperText Markup Language (HTML) format to enable the inclusion of such hyperlinks.
  • Inaccurate or nonfunctioning hyperlinks. A registrant must correct an inaccurate or nonfunctioning link or hyperlink to an exhibit. In the case of a registration statement that is not yet effective, a registrant can file an amendment to the registration statement correcting the inaccurate or nonfunctioning link or hyperlink. In the case of a registration statement that has become effective or an Exchange Act report, a registrant must correct the inaccurate or nonfunctioning link or hyperlink in the next Exchange Act periodic report that requires or includes an exhibit pursuant to Item 601 or, in the case of a foreign private issuer, Form 20-F or Form F-10. Alternatively, a registrant may correct an inaccurate or nonfunctioning link or hyperlink in a registration statement that has become effective by filing a post-effective amendment.

Exceptions

The final rules provide that registrants must include a hyperlink to each exhibit in the exhibit index, unless:

  • the exhibit is filed in paper pursuant to a temporary or continuing hardship exemption under Rules 201 or 202 of Regulation S-T, or pursuant to Rule 311 of Regulation S-T, although the final rules require specific notations to identify these exhibits (for example, a "P" next to the listed exhibit in the exhibit index to reflect that the exhibit was filed in paper, and if the exhibit is filed in paper pursuant to a temporary or continuing hardship exemption, the letters "TH" or "CH" next to the letter "P")
  • the exhibit is an eXtensible Business Reporting Language (XBRL) exhibit, or
  • the exhibit is filed with Form 6-K or the registrant is part of the multijurisdictional disclosure system (MJDS) used by certain Canadian issuers

Foreign Private Issuers

The final rules apply to many forms used by foreign private issuers. Forms F-1, F-3, F-4, F-10 and 20-F will be subject to the hyperlink requirements discussed above.

Footnote

1 In the SEC's parlance, exhibits filed through incorporation by reference are "hyperlinked" whereas exhibits filed with the report or registration statement are "linked." The terms are used interchangeably in this client alert.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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