The SEC has adopted final rules requiring an active hyperlink to each filed exhibit identified in the exhibit index of most Securities Act and Exchange Act registration statements and reports that are required to include exhibits under Item 601 of Regulation S-K. The rules become effective on September 1, 2017 (though the adopting release encourages early compliance), provided that smaller reporting companies and non-accelerated filers that submit filings in ASCII format need not comply with the rules until September 1, 2018. The new requirements will apply to Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, SF-1, SF-3, 10, 10-K, 10-Q, 8-K, F-10, 20-F and 10-D (though the compliance date for Form 10-D will be announced at a later date). The requirement will not apply to other forms under the multi-jurisdictional disclosure system used by certain Canadian issuers or to Form 6-K, as exhibits and exhibit indexes are not required by those forms.
Hyperlinks are required for each exhibit other than exhibits filed with Form ABS-EE, XBRL exhibits, and exhibits filed in paper pursuant to a temporary or continuing hardship exemption. Registration statements will require hyperlinks in the exhibit index of the initial filing and each subsequent pre-effective amendment.
Historically, the EDGAR system has supported filings in either HTML format or ASCII format, but registrants will now have to file registration statements and reports subject to the hyperlinking requirements in HTML format, because the ASCII format does not support hyperlinking. The adopting release noted that in 2015, less than one percent of the forms affected by the rule were submitted in the ASCII format. The SEC provided the one-year phase-in period for smaller reporting companies and non-accelerated filers that file in ASCII format to mitigate some of the cost burdens for those companies related to switching to the HTML format.
In the event that a hyperlink is malfunctioning or incorrect, the hyperlink must be corrected (i) by pre-effective amendment, in the case of a registration statement that is not yet effective, or (ii) in the next Exchange Act report that contains an exhibit index, in the case of an effective registration statement or Exchange Act report. An inaccurate hyperlink in an effective registration statement may also be corrected in a post-effective amendment. The adopting release provides that an inaccurate hyperlink alone will not render a filing materially deficient, nor affect a registrant’s eligibility to use short-form registration statements.
The SEC will be issuing an updated EDGAR Filer Manual that will describe the procedures necessary to create hyperlinks to exhibits, whether the exhibits were previously filed, or are being filed with the particular registration statement or report.