The U.S. Securities and Exchange Commission on March 1, 2017, adopted rules requiring reporting companies to include in their 1933 Act registration statements and 1934 Act periodic and current reports and registration statements a hyperlink to, essentially, all documents that are filed as exhibits to that registration statement or report. The new rules become effective for filings made on or after September 1, 2017, with limited exceptions for certain small filers.
Registration statements, e.g., Forms S-1 and S-3 and Form10, and periodic and current reports, e.g., Forms 10-K, 10-Q and 8-K, require the attachment (or incorporation by reference) of certain documents as exhibits. Exhibits are first listed in the relevant item of the filed document and then are repeated in the exhibit index that is attached to the document. Exhibits to a registration statement or report that were filed as an exhibit to a preceding SEC filing may be incorporated by reference into the current filing by a notation identifying the prior filing from which that exhibit is incorporated.
The new rule requires that any exhibit listed in the exhibit index must be accompanied by an active link to the location of that exhibit in the SEC’s EDGAR filing system. It is noteworthy that this requirement extends not only to documents that are incorporated by reference from prior filings, but also documents actually filed with the current filing. The linking requirement pertains only to exhibits that have been filed on EDGAR, meaning that any incorporated exhibits that were filed in paper format are not covered by the new rule. Similarly, the rule does not apply to exhibits filed in XBRL.
Registration statements filed under the 1933 Act typically are the subject of an initial public filing and one or more amendments prior to the final form of the registration statement being declared effective. Companies filing these registration statements frequently add to the list of filed exhibits in the various amendments, and may revise, and refile, previously filed exhibits. In a change of course from the proposed rule, the SEC will require that each publicly filed version of the registration statement contain the required link for each listed exhibit.
Commenters on the proposed rule expressed concern about the ramifications of inaccurate links that may be mistakenly provided. The final rule provides that if an inaccurate link is contained in a version of a registration statement that has not yet been declared effective, then that error must be corrected in a pre-effective amendment. If the error is contained in a registration statement that has been declared effective, or in a periodic or current report, the error must be corrected in the next periodic report. The SEC states that an inaccurate exhibit link will not render a filing materially deficient or affect a registrant’s ability to use a short-form 1933 Act registration statement, such as Form S-3 or S-8.
A limited number of SEC filings are made in the ASCII format, which does not support the linking functionality like the HTML format used for the vast majority of filings. To implement the new rules, all companies will be required to file registration statements and reports that contain exhibits in the HTML format. The effective date of the rule is deferred until September 1, 2018, for certain small filers (smaller reporting companies and companies that are neither a large accelerated filer nor an accelerated filer) that currently file in the ASCII format.
Notwithstanding the September 1, 2017, effective date for most issuers, the SEC encourages early adoption of the new rule.
Please contact a member of your Fenwick & West team for more information.