On March 1, 2017, the Securities and Exchange Commission (“SEC”) announced the adoption of amendments that will require registrants that file certain registration statements and reports subject to the exhibit requirements of Item 601 of Regulation S-K (i) to include within each filing a hyperlink to each exhibit referenced therein and (ii) to submit all such filings to EDGAR in HTML format. The new requirements are set to go into effect on September 1, 2017 for most registrants.
The new requirements will apply to registrants submitting the following types of filings under the Securities Act of 1933 and the Securities Exchange Act of 1934:
|Securities Act||Exchange Act|
|• Form S-1||• Form 10|
|• Form S-3||• Form 10-K|
|• Form S-4||• Form 10-Q|
|• Form S-8||• Form 8-K|
|• Form S-11||• Form 10-D|
|• Form SF-1||• Form 20-F|
|• Form SF-3|
|• Form F-1|
|• Form F-3|
|• Form F-4|
|• Form F-10|
Currently, if you wish to access an exhibit that is filed with a registration statement or report, you must take several steps before you can retrieve the document. First, you must review the exhibit index within the filing itself. Then, once you have identified the relevant exhibit, you must exit the filing and click on the exhibit of such registration statement or report (for exhibits filed therewith), or search through the rest of the registrant’s EDGAR filings to locate the exhibit in question (for exhibits that are incorporated by reference). This process is inefficient and time consuming, and the introduction of hyperlinks providing instant access to exhibits will be a welcome development for EDGAR users.
The adopting release also provides that the registration statements and reports shown above must be submitted to EDGAR in HTML format, which is compatible with and allows hyperlinks, and not in ASCII format, which does not. As a practical matter, this requirement will not affect most registrations because only a small minority of them still upload these documents to EDGAR in ASCII format.
We note that the new requirements do not apply to those exhibits filed with the SEC in paper form pursuant to a hardship exemption under Rule 201 or Rule 202 of Regulation S-T or under Rule 311 of Regulation S-T. Additionally, exhibits originally filed in paper form (e.g., a registrant’s articles of incorporation or bylaws) need not be refiled in electronic form, although we would recommend that registrants do so to make them more easily accessible.
While most registrants must be in compliance with the new rules by September 1, 2017, this deadline does not apply to any smaller reporting company or any registrant that is neither an accelerated filer nor a large accelerated filer, which registrants have until September 1, 2018 to comply.
However, given the relatively low cost of compliance with these new rules, and the clear benefits of hyperlinked exhibits and HTML formatting to readers of these registration statements and reports, we recommend that all registrants comply with the new rules no later than September 1, 2017.
If you have any questions or would like to discuss further, please contact Rob Wernli at (858) 720-8953 or Sara Shirzad at (858) 720-8918.