Last August, the SEC proposed rule amendments that would require companies to include a hyperlink to each exhibit listed in the exhibit index of a registration statement, periodic report or current report. At the time, I wrote that “these amendments are unlikely to be controversial, and you should expect them to be final in short order.” (See this Doug’s Note.) And while that observation admittedly did not require special powers of clairvoyance, it nevertheless turned out to be true.

This week the SEC issued final rules designed to make it easier to access and retrieve exhibits to company filings through the use of hyperlinks. This will avoid the cumbersome process of first determining the filing in which an incorporated-by-reference exhibit physically appears and then searching through the company’s EDGAR filings to locate the relevant document.

Hyperlink requirement.

Item 601 of Regulation S-K requires companies to include an exhibit index that lists each exhibit included with the filing. Item 601 has now been amended to require that each exhibit to Forms S-1, S-3, S-4 and S-8 (among others) under the Securities Act and Forms 10, 10-K, 10-Q and 8-K (among others) under the Exchange Act include an active hyperlink to the particular document. This applies whether or not the exhibit is incorporated by reference.

For periodic reports, an active hyperlink must be included for each exhibit listed when the report is filed. For registration statements, a hyperlink must be included in the initial filing and in each amendment (pre-effective and post-effective) thereafter. (This is a change from the proposed rule, which limited hyperlinks to the registration statement that becomes effective.)

The amendment excludes a short list of filings, including among others:

• XBRL exhibits, since they are in unconverted code and not incorporated by reference into other filings and
• exhibits that were filed on paper before EDGAR filings became mandatory, have not been re-filed electronically and are incorporated by reference.

Companies must submit all affected registration statements and reports in HyperText Markup Language (HTML) format, rather than American Standard Code for Information Interchange (ASCII) format, as is currently permitted. The SEC noted that the elimination of ASCII format filings would not be unduly burdensome because less than two percent of the filings made over the past twelve months on forms affected by the amendments were filed in ASCII.

Effective date.

For most companies, the new requirement becomes effective for filings made on or after September 1, 2017.

Smaller reporting companies and non-accelerated filers using ASCII format have until September 1, 2018 to comply.