The SEC’s recently adopted rules requiring hyperlinked exhibits become effective on September 1, 2017.1
The hyperlink requirement applies to certain registration statements and reports under the Securities Act of 1933 (Securities Act) and the Securities Exchange Act of 1934 (Exchange Act) that are required to include exhibits under Item 601 of Regulation S-K, including filings on Forms S-1, S-3, 10, 10-K, 10-Q and 8-K.2 The hyperlink requirement also applies to filings by foreign private issuers on Forms F-10 and 20-F but not to filings on Form 6-K by foreign private issuers or by certain Canadian issuers under the multijurisdictional disclosure system. Because proxy statements are not required to include exhibits, they are not subject to the hyperlink requirement.
The exhibit index in a registration statement or report subject to the new requirement must include hyperlinks to both exhibits filed with that document, as well as exhibits incorporated by reference. Hyperlinks must be to documents on the EDGAR website; hyperlinks to other websites are prohibited. If a registration statement or report is amended, each amendment must include hyperlinks to the exhibits required by the amendment.
Under the new requirement, registration statements and reports that include exhibits must be filed in HTML format because ASCII — the other electronic format permitted by the SEC — does not support functional hyperlinks. However, the SEC's adopting release provides that "registrants may continue to file in ASCII any schedules or forms that are not subject to the exhibit filing requirements under Item 601 [of Regulation S-K], such as proxy statements, or other documents included with a filing, such as an exhibit."3
A limited number of phase-in periods and exemptions are available:
- There is a one year phase-in period for smaller reporting companies and for non-accelerated filers,4 excluding issuers already filing in HTML format. The phase-in period is intended to permit registrants filing in ASCII to migrate their filings to the required HTML format.
- No hyperlink is required for any exhibit that was previously filed in paper form, meaning that registrants will not have to convert pre-EDGAR and other existing paper exhibits into electronic form.
- The new requirement does not apply to exhibits filed with Form ABS-EE (the form for submission of electronic exhibits for asset-backed securities) or in XBRL format.
- For filings on Form 10-D (used to report distributions by asset-backed issuers), no hyperlinks will be required to exhibits filed with Form ABS-EE until certain technical programming changes have been completed.
- The hyperlink requirement does not apply to paper filings made pursuant to a temporary or continuing hardship exemption under Rule 201 or 202 of Regulation S-T or pursuant to Rule 311 of Regulation S-T.
The adopting release notes that a non-functional hyperlink or a hyperlink to the wrong exhibit will not render a filing materially deficient or prevent a company from using a short-form registration statement like S-3. However, the instructions to Rule 105 of Regulation S-T were amended to require that a defective hyperlink must be corrected. In the case of a registration statement that has not become effective, the correction must be made by pre-effective amendment. In the case of an effective registration statement or a report filed under the Exchange Act, the correction must be made in the next Exchange Act report that requires, or includes, an exhibit pursuant to Item 601 of Regulation S-K (or, in the case of a foreign private issuer, pursuant to Form 20-F or Form F-10).