Now that the SEC's new rules on exhibit hyperlinks are live as of September 1, 2017, we have updated our March blog post with the frequently asked question below regarding exhibit indexes.
Where should we put the exhibit index now? Can we combine the list of exhibits and the exhibit index?
In connection with the SEC's March 2017 amendments implementing the hyperlink requirement, the SEC also amended the rules pertaining to placement of exhibit index, which had previously required the exhibit index to "precede immediately the exhibits filed with such registration statement." As amended, Rule 102(d) of Regulation S-T and Rule 601(a)(2) of Regulation S-K now require the exhibit index to "appear before the required signatures in the registrant statement or report." Although exhibit index practice has varied, there is some ambiguity as to whether the new rules require a separate exhibit index before the signature page and the exhibits themselves. For example, while some companies are combining the exhibit table with the exhibit index and placing the latter before the signature page, others have been retaining a separate exhibit table and exhibit index and move the latter above the signatures.
As a result of this ambiguity and variance in practice, we reached out to the SEC staff to get interpretive guidance on how the list of exhibits (including the exhibit index) should now be presented in registration statements and reports. According to the SEC Staff in the Office of Chief Counsel, it is permissible to combine the exhibit table with the exhibit index and only present one list of exhibits with hyperlinks, and a separate exhibit index is not required. In fact, he said the purpose of the rule was to make presentation simpler, and presenting only one exhibit list above the signatures (like described in option 2 below) may be preferable in this regard. I think this is a good, practicable outcome and should dispense with the notion of having two lists of exhibits.
Click here to view an example of the approach applied on an 8-K.