By: Andrew Gibbons, Don Reynolds, and Halle Vakani
Beginning September 1, 2017, public companies are required to comply with a new SEC requirement that registration statements and certain reports filed after September 1 include an active hyperlink to each exhibit listed in the filing’s exhibit index. This applies to exhibits filed with the filing as well as exhibits incorporated by reference to prior filings. The new requirement will facilitate access to exhibits for investors and other users of information filed with the SEC via the EDGAR system. Non-accelerated filers and smaller reporting companies that submit filings in ASCII have until September 1, 2018 to comply with the SEC hyperlinking requirement.
Filing Types Impacted
This new requirement impacts registration statements and reports under the Securities Act of 1933 and the Securities Exchange Act of 1934 including:
- Registration Statements: Forms 10, S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, SF-1 and SF-3; and
- Annual and Periodic Reports: Forms 10-K, 10-Q, 8-K, 10-D, F-10 and 20-F.
The requirement does not apply to the following:
- XBRL exhibits – the XBRL taxonomy extension documents;
- Exhibits filed in paper under temporary or continuing hardship exemptions; or
- Exhibits filed with Form ABS-EE (a form filed by asset-backed issuers).
Correcting Non-Functioning or Inaccurate Hyperlinks
Registration statements or reports containing non-functioning or inaccurate hyperlinks are required to be corrected under the new requirements. Pre-effective registration statements must be corrected before becoming effective by means of a pre-effective amendment. Effective registrations statements and other reports must be corrected in the reporting company’s next periodic report requiring an exhibit under Item 601 of Regulation S-K, or a reporting company can correct an effective registration statement by filing a post-effective amendment.
The SEC has noted that a non-functioning or inaccurate hyperlink alone will not render the filing materially deficient, nor affect a reporting company’s eligibility to use short-form registration statements such as Forms S-3 or S-8.
How to Comply
Reporting companies that utilize financial printers for their EDGAR filings should talk with their printers and confirm in advance of filing that each exhibit listed in exhibit indices has a functioning and correct active link.
Reporting companies that file their EDGAR filings in-house, without the assistance of a financial printer, should talk with their EDGAR software provider about how to include active hyperlinks in their exhibit indices and confirm filings after September 1 contain the required links. They can also refer to the EDGAR Filer Manuals, updated in July 2017, for further information on how to hyperlink exhibits.
This step in filing annual and periodic reports with the SEC should be included in all reporting companies’ standard disclosure controls and procedures with respect to making filings on EDGAR.
Final Rule: https://www.sec.gov/rules/final/2017/33-10322.pdf
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Andrew J. Gibbons, Donald R. Reynolds, and S. Halle Vakani are members of the Capital Markets practice group of Wyrick Robbins, which represents clients across a broad range of industries in connection with their significant financing transactions and advises public companies on SEC and stock exchange rules, securities law compliance, disclosure and corporate governance matters. The Capital Markets group publishes Client Alerts periodically as a service to clients and friends. The purpose of this Client Alert is to provide general information, and it is not intended to provide, and should not be relied upon as, legal advice.