• Reminder: SEC Requires Hyperlinks to Exhibits in Certain Filings Made On or After September 1, 2017
  • August 15, 2017 | Authors: Harry S. Pangas; Steven B. Boehm; Vlad M. Bulkin; Cynthia M. Krus; Cynthia R. Beyea; Dodie C. Kent; Thomas E. Bisset; Stephen E. Roth
  • Law Firms: Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - New York Office
  • On March 1, 2017, the Securities and Exchange Commission (the SEC) approved rule changes that are designed to facilitate easier and more efficient access to documents that are listed as exhibits to certain SEC filings. For filings made on or after September 1, 2017, certain SEC registrants1 that file registration statements (including pre-effective amendments) and periodic and current reports that are subject to the exhibit requirements under Item 601 of Regulation S-K, or that file on Forms F-10 or 20-F2, must include a hyperlink to each exhibit listed in the exhibit index of these filings. Regardless of whether an exhibit is filed with the filing or is incorporated by reference to a prior filing, a hyperlink to the exhibit needs to be included in the exhibit list of the filing.

    Specifically, the amendments apply to exhibit lists in 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 of 1933, as amended (the Securities Act), as well as Forms 10, 10-K, 10-Q, 8-K, 10-D, F-10 and 20-F under the Securities Exchange Act of 1934, as amended (the Exchange Act).3 To enable the inclusion of hyperlinks, the amendments also require that registrants submit all such filings in HTML format (effectively eliminating the use of the ASCII format for EDGAR filings). However, registrants may continue to file in ASCII format any schedules or forms that are not subject to the exhibit filing requirements under Item 601 of Regulation S-K, such as proxy statements and any exhibits thereto. Under these amendments, registrants are required to include an active hyperlink next to each exhibit listed in the filing’s exhibit index, even if the exhibit is incorporated by reference, unless the exhibit was previously filed in paper format pursuant to a temporary or continuing hardship exemption. The final rules do not require registrants to refile any document that was previously filed only in paper, including any organizational documents.

    Moreover, these amendments do not apply to the exhibit lists in registration statements and periodic reports filed by investment companies, unless these investment companies are currently required to file reports on Forms 10-K, 10-Q and 8-K. For example, business development companies (BDCs), which use Form N-2 to register the sale of their securities under the Securities Act, do not have to comply with these changes with regard to the exhibit lists in BDC registration statements on Form N-2. However, BDCs do have to comply with these changes when filing their reports on Forms 10-K, 10-Q and 8-K.

    1 A registrant that is a “smaller reporting company,” as defined in Rule 405 under the Securities Act of 1933, as amended (the Securities Act), and in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the Exchange Act), or that is neither a “large accelerated filer” nor an “accelerated filer,” as defined in Exchange Act Rule 12b-2, and that submits filings in ASCII need not comply with the final rules until September 1, 2018. The compliance date for any Form 10-D filing that will require a hyperlink to an exhibit filed with Form ABS-EE will be delayed until SEC staff completes programming changes to EDGAR that will allow registrants to include Form 10-D and Form ABS-EE in a single submission so that the required exhibit hyperlinks can be created at the time the Form 10-D is filed. The SEC will publish a notice in the Federal Register and on the SEC website announcing the compliance date for these Form 10-D filings.

    2 Form F-10 is a form that may be used by Canadian “foreign private issuers,” as defined in Securities Act Rule 405, to register securities under the Securities Act. Form 20-F is a form used by foreign private issuers to file annual reports under the Exchange Act.

    3 The final rules specifically excluded Form 6-K and certain multi-jurisdictional forms filed by foreign private issuers and Canadian issuers. The final rules also exclude exhibits that are filed with Form ABS-EE and exhibits filed in XBRL format.