Beginning September 1, SEC Requires Hyperlinking of Exhibits

By Steve Quinlivan and Bryan Pitko

The U.S. Securities and Exchange Commission (SEC) has adopted rules which will require public companies to include a hyperlink to each exhibit identified in an exhibit index in certain SEC filings, subject to limited exceptions. The new rules are effective September 1, 2017.

The new rules will apply to nearly all of the registration statements and reports that are required to include exhibits under Item 601 of Regulation S-K. This includes Forms S-1, S-3, S-4, S-8 and S-11 under the Securities Act of 1933, and Forms 10-K, 10-Q and 8-K under the Securities Exchange Act of 1934.

The new rules state that a public company must correct a nonfunctioning hyperlink or hyperlink to the wrong exhibit by filing:

  • In the case of a registration statement that is not yet effective, a pre-effective amendment to such registration statement
  • In the case of a registration statement that is effective or an Exchange Act report, in the next Exchange Act periodic report that requires, or includes, an exhibit pursuant to Item 601 of Regulation S-K

According to the SEC, if a filing contains an inaccurate exhibit hyperlink, the inaccurate hyperlink alone would not render the filing materially deficient, nor affect a registrant’s eligibility to use short-form registration statements.

The SEC adopted a phase-in period for non-accelerated filers and smaller reporting companies. Non-accelerated filers and smaller reporting companies that submit filings in ASCII will have one year after the effective date of the final rules to begin to comply. During the phase-in period, these filers may continue to file registration statements or reports in ASCII and will not need to include hyperlinks to the exhibits listed in the exhibit indexes of their filings. 

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