A Link to the Past (and Present)

08 March 2017 Legal News: Transactional & Securities Publication
Author(s): Benjamin F. Rikkers

Legal News: Transactional & Securities

On March 1, 2017, the U.S. Securities and Exchange Commission (SEC) adopted final rules that will require registrants that file registration statements or reports subject to the exhibit requirements under Item 601 of Regulation S-K (including Form 10-K, Form 10-Q and Form 8-K), or that file Forms F-10 or 20-F, to include a hyperlink to each exhibit listed in the exhibit index of these filings. The new rules are an attempt by the SEC to modernize disclosure and provide a more simplified method by which users of the Electronic Data Gathering, Analysis, and Retrieval system (EDGAR) may access and retrieve documents that are filed as exhibits to registration statements and periodic reports.

Overview of the New Rules

Under the new rules, registrants will be required to include a hyperlink to each exhibit identified in the exhibit index of each periodic report or registration statement filed by the registrant; including initial filings of, and subsequent amendments to, registration statements that have not yet been declared effective by the SEC. This includes exhibits that have been previously filed with the SEC and exhibits that are being filed concurrently with the applicable registration statement and periodic report.

The SEC has allowed for a limited number of exceptions where hyperlinking is not required. These include:

  • Exhibits that have been previously filed in paper format prior to the time that the use of the EDGAR system became mandatory;
  • Exhibits filed on paper under temporary or continuing hardship exemptions under Rules 201 or 202 of Reg S-T or under Rule 311 of Reg S-T;
  • XBRL exhibits; and
  • Exhibits filed with Form ABS-EE

As a result of these exceptions, registrants will generally not be required to re-file exhibits with the SEC for the purpose of complying the rules. However, registrants will be required to include notations in the exhibit index that identify exhibits filed in paper form only.

Use of HTML Format

Registrants will also be required to file registration statements and reports containing exhibit hyperlinks in HTML format. Currently, registrants may submit filings in HTML or ASCII format. The shift to HTML format is a result of ASCII format being unable to support the use of hyperlinks. In its adopting release, the SEC noted that only a small percentage of registrants make filings in ASCII format. As a result, this change is unlikely to affect most registrants.

Compliance Concerns

In connection with the adoption of the new rules, the SEC has made clear that an inaccurate exhibit hyperlink does not, by itself, cause a filing to be materially deficient or affect a registrant’s ability to use short-form registration statements, including Form S-3. In the event that an inaccurate or broken hyperlink is included in a registration statement or report, the SEC requires that registrants correct the error by:

  • In the case of a pre-effective registration statement, filing an amendment to the registration statement with the corrected hyperlink.
  • In all other cases, including a corrected hyperlink in the next periodic report (i.e., Form 10-K, Form 10-Q and Form 8-K) that either requires or includes an exhibit index.

Registrants should also be aware that the rules note that EDGAR will not accept documents that include hyperlinks to external websites and that hyperlinks to external websites will not be considered when determining compliance with the new rules. As a result, all hyperlinks should lead to documents on the EDGAR system. In addition, registrants should continue to be wary of including any links or references to external websites in their periodic reports as the inclusion of the link or reference will cause the registrant to be subject to the civil liability and antifraud provisions of the federal securities laws, with reference to the information contained in the linked or referenced material.

Next Steps

The rules are scheduled to take effect on September 1, 2017 for most EDGAR filers. Smaller reporting companies and non-accelerated filers that utilize ASCII will have until September 1, 2018 to comply with the rules.

Registrants should become familiar with the new rules and prepare to include hyperlinked exhibits in their registration statements and periodic reports. In particular, registrants that make EDGAR filings in-house should familiarize themselves with the new rules and look for updated guidance that will be published in the EDGAR Filer Manual describing the procedures needed to create hyperlinks to exhibits (including creating links to exhibits that are being filed concurrently with a registration statement or periodic report).

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and our colleagues. If you have any questions about this update or would like to discuss this topic further, please contact your Foley attorney or the following:

Richard Dancy
Senior Counsel

Benjamin F. Rikkers

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