SEC Issues Rules Governing Exhibit Hyperlinks and HTML Format

March 7, 2017 Advisory

On March 1, 2017, the Securities and Exchange Commission ("SEC") adopted final rules requiring registration statements and periodic and current reports be submitted in HyperText Markup Language ("HTML") format, and include a hyperlink to exhibits in such filings. The final rules adopted by the SEC will put an end to the time consuming process of searching through a registrant's filings to locate exhibits incorporated by reference.

The final rules, which take effect on September 1, 2017, amend Item 601 of Regulation S-K ("Item 601") and Item 102 of Regulation S-T to require registrants to include a hyperlink to every exhibit identified in an exhibit index filed pursuant to such items. Under the final rules, an active hyperlink to each exhibit that is filed with a report must be included at the time such report is filed. Further, active hyperlinks must be included with the initial registration statement and all subsequent pre-effective amendments (as opposed to just the effective registration statement). The SEC's prohibition on hyperlinks to external websites remains in place.

The final rules also amend Rule 105 of Regulation S-T to require all registration statements and reports under Item 601 and Forms 20-F and F-10 to be submitted in HTML format (as filings submitted in American Standard Code for Information Interchange ("ASCII") and XBRL exhibits cannot support functional hyperlinks). However, registrants should be aware that all schedules and forms not subject to the exhibit filing requirements under Item 601 (such as proxy statements) may still be filed in ASCII. All exhibits filed in paper pursuant to a temporary or continuing hardship exemption under Rule 201 or 202 of Regulation S-T, or pursuant to Rule 311 of Regulation S-T are exempted from the final hyperlinking and HTML rules.

How to fix incorrect or non-functioning hyperlinks? – The SEC has explicitly stated incorrect or non-functioning hyperlinks will not render a filing materially deficient, nor affect a registrant's ability to use short-form registration statements. Incorrect or non-functioning hyperlinks must still be corrected as follows:

  • Not yet effective registration statements: Hyperlinks must be corrected via a pre-effective amendment to the registration statement.
  • Effective registration statements, current and periodic reports: Hyperlinks must be corrected in the next Exchange Act periodic report that requires or includes an exhibit pursuant to Item 601 (or in the case of a foreign private issuer, pursuant to Form F-10 or Form 20-F).

Which filers are temporarily exempted from the rule?

  • The compliance date is extended one year to September 1, 2018 for any "smaller reporting company"[1] that submits filings in ASCII, provided that such smaller reporting company is neither a "large accelerated filer" nor an "accelerated filer" (each as defined by Rule 12b-2 of the Exchange Act).

What filings are subject to the rule?

  • All registration statements and reports required under Item 601 of Regulation S-K (including Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, SF-1, SF-3, 10, 10-K, 10-Q, 8-K, and 10-D) and Form F-10 and Form 20-F (used by foreign private issuers).
  • Filings on Form 10-D pursuant to Form ABS-EE are not required to comply at the moment. The SEC has indicated it will publish a document in the Federal Register notifying the public of the compliance date for Form 10-D.
  • All exhibits filed in XBRL are excluded from the rule.

[1] As defined in Rule 405 of the Securities Act and Rule 12b-2 of the Exchange Act.