SEC Amends Exhibit Index Requirements to Include Hyperlinks
On March 1, 2017, the SEC adopted the final rules requiring registrants to include a hyperlink to each exhibit listed on the exhibit index in registration statements and reports that are subject to the requirements of Item 601 of Regulation S-K or that are filed on Forms F-10 or 20-F. This new requirement is designed to provide investors with quicker and easier access to information within exhibits and to reduce the time and costs associated with searching for exhibits that are incorporated by reference.
The final rules amend Item 601 of Regulation S-K, Rules 11, 103 and 105 of Regulation S-T and Forms F-10 and 20-F to require registrants to include, at the time of filing, an active hyperlink to each exhibit identified in the exhibit index, unless the exhibit is filed in paper pursuant to a certain hardship exemptions. The new rules apply both to exhibits that are incorporated by reference and those that are filed at the same time as the subject filing. All affected registration statements and reports must be submitted in HTML format.
With respect to registration statements that are subject to the new rules, the hyperlink requirement applies to the initial filing and all subsequent pre- and post-effective amendments (a slight modification from the proposed rules, which applied only to the registration statement that becomes effective).
The final rules include the addition of an instruction to Rule 105 of Regulation S-T, which requires registrants to correct an inaccurate or nonfunctioning hyperlink:
in a registration statement that is not yet effective, by filing a pre-effective amendment with an accurate, functioning hyperlink, or
in a registration statement that is effective or a previously filed Exchange Act report, by including an accurate, functioning hyperlink in the next Exchange Act periodic report that requires or includes an exhibit pursuant to Item 601 of Regulation S-K.
The final rules specifically exclude any XBRL exhibits, although the SEC notes that it is continuing efforts to modernize the format of all information filed on EDGAR. Furthermore, the hyperlink requirement does not apply to exhibits incorporated by reference that were not previously filed in electronic format or exhibits that are filed with Form ABS-EE.
Filings Subject to Hyperlink Requirement
The hyperlink requirement applies to all registration statements and reports that are subject to the exhibit filing requirements 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 and Forms 10, 10-K, 10-Q, 8-K and 10-D under the Exchange Act. The hyperlink requirement also applies to foreign private issuers filing registration statements or reports on Forms F-10 or 20-F.
Although the SEC is encouraging early compliance, the final rules take effect September 1, 2017 for most filers. For smaller reporting companies and non-accelerated filers that submit filings in ASCII format, the compliance date is September 1, 2018. The SEC has delayed the compliance date for any Form 10-D that will require hyperlinks to any exhibit filed with Form ABS-EE until it can implement programming changes to EDGAR.
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