alerts & publications
SEC’s Mandatory HTML Format and Exhibit Hyperlink Requirements Become Effective on September 1August 25, 2017
As a reminder, beginning September 1, 2017, registration statements and periodic and current reports filed by large accelerated and accelerated filers that are subject to the exhibit requirements of Item 601 of Regulation S-K (including filings on Form F-10 or 20-F) will be required to include an active link or hyperlink for each exhibit listed in the Exhibit Index to the filing (see our March 27 Client Alert, SEC Adopts Mandatory HTML Format and Exhibit Index Hyperlink Requirement). All hyperlinks must link directly to the SEC’s EDGAR website; EDGAR will not accept documents containing web addresses that hyperlink to external websites.
The active link or hyperlink is required regardless of whether the exhibit is being incorporated by reference or concurrently filed, except that exhibits properly filed in paper format are not required to be re-filed to enable hyperlinking. If a hyperlink reference is not correct or is not functioning, the company will be required to correct it. For periodic and current reports and effective registration statements, the hyperlink must be corrected in the next report filed under the Securities Exchange Act of 1934 that requires, or includes, an exhibit pursuant to Item 601 of Regulation S-K (or in the next Form 20-F or Form F-10 for a foreign private issuer), or, in the case of an effective registration statement, in a post-effective amendment to the registration statement if desired as an alternative means of correction. For registration statements that are not yet effective, the hyperlink must be corrected in a pre-effective amendment. Notwithstanding this correction requirement, the SEC has made clear that an inaccurate exhibit hyperlink in a filing will not render the filing materially deficient or affect a company’s eligibility to use short-form registration statements (i.e., Forms S-3 or F-3).
The SEC has added a new Section 5.4.2 to its Edgar Filer Manual (located here) to describe the procedures needed to create a hyperlink to an exhibit the company previously filed with a registration statement and report and the procedures needed to create a link to an exhibit filed concurrently with the registration statement or report. As part of the SEC’s amendments to enable the inclusion of such hyperlinks, the SEC will also require companies to submit all SEC filings required to include exhibit hyperlinks in HTML format. Companies should coordinate with their outside printer or filing service to ensure proper compliance with these requirements for their SEC filings made on or after the September 1 effective date.
Companies should also ensure they have reviewed all cross-references to exhibits incorporated by reference in previous SEC filings to ensure accuracy. This is particularly important for companies’ upcoming Form 10-K filings because Form 10-Ks are required to include a significantly longer list of incorporated documents and agreements than other SEC filings. If a previous cross-reference for an incorporated agreement is not accurate, the cross-reference will need to be corrected with an accurate hyperlink prior to filing.
The September 1, 2017, effective date for exhibit hyperlinking does not apply to smaller reporting companies and non-accelerated filers. While these companies are permitted (and even encouraged) to include hyperlinks for all exhibits, they are not required to comply with the new exhibit hyperlinking requirement until September 1, 2018. The SEC has also excluded XBRL exhibits from the hyperlinking requirement and has delayed the compliance date with respect to any Form 10-D that will require hyperlinks to any exhibit filed with Form ABS-EE (forms used by issuers of asset-backed securities) until further programming changes are implemented within EDGAR.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Shelly Heyduk, an O'Melveny partner licensed to practice law in California, Robert Plesnarski, an O'Melveny partner licensed to practice law in Washington D.C. and Pennsylvania, James Harrigan, an O'Melveny associate licensed to practice law in Washington D.C. and Maryland, and Lauren Jaeger, an O'Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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