One of the typical activities for junior associates in performing due diligence for M&A and securities transactions involving public companies is going through the “exhibit list” filed by the public company on its recent registration statements and Securities Exchange Act of 1934 (the Exchange Act) filings and tracking down the material agreements listed. Today, that process usually entails reading that list and then scrolling through the public company’s EDGAR filings, trying to find the actual filing to which each such material agreement is attached. This process, often also performed by young associates in the investment banking and other investment fields, can be labor-intensive and not particularly intellectually challenging. Recently, however, the Securities and Exchange Commission (SEC) promulgated rules that will make this process much easier and faster for those hard-working young professionals.
On March 1, 2017, the SEC adopted amendments to various rules, including Item 601 of Regulation S-K, that will require most registrants to include a hyperlink to each exhibit listed in the exhibit index of these filings. To enable the inclusion of such hyperlinks, the amendments also require that registrants submit all such filings in HTML format.
Hyperlinking to Exhibits – Background
Item 601 of Regulation S-K specifies the exhibits that registrants must file with registration statements filed under the Securities Act of 1933 (the Securities Act) and the Exchange Act and with periodic and current reports under the Exchange Act. Item 601 also requires registrants to include an exhibit index that lists each exhibit included with the filing. Once an exhibit is filed, a registrant can often incorporate it by reference into later filings to meet the exhibit requirements for those filings.
Hyperlinking to Exhibits – Final Rule
Under the final rules, registrants will be required to include a hyperlink to each exhibit identified in the exhibit index (unless the exhibit is filed in paper pursuant to a temporary or continuing hardship exemption under Rules 201 or 202 of Regulation S-T or pursuant to Rule 311 of Regulation S-T). This requirement will apply to the forms for which exhibits are required under Item 601 of Regulation S-K, but will exclude certain exhibits (e.g., XBRL exhibits and those filed with Form ABS-EE) and certain forms (e.g., those under the multijurisdictional disclosure system used by certain Canadian issuers or in Form 6-K).
One especially helpful requirement for reviewers deals with registration statements–the initial registration statement and each subsequent pre-effective amendment must include hyperlinks to each exhibit identified in the exhibit index (or if the exhibit is incorporated by reference, to the exhibit separately filed on EDGAR).
HTML Format – Background
Rule 105 of Regulation S-T sets forth the limitations on, and liability for, the use of HTML documents and hyperlinks in electronic filings. Rule 105, among other things, currently permits hyperlinking to other documents within the same filing, such as exhibits, and to documents contained in other forms or schedules that have been previously filed on EDGAR. Rule 105 prohibits hyperlinking to external websites, locations or other documents (i.e., locations outside of the EDGAR system).
Currently, registrants must submit electronic filings to the SEC using the EDGAR system in either the ASCII format or the HTML format. HTML has features that allow documents prepared in this format to include hyperlinks to another place within the same document or to a separate document. (In contrast, documents prepared in the text-based ASCII format cannot support functional hyperlinks; because the ASCII format does not support hyperlink functionality, the exhibit hyperlinking requirement would be feasible only if registrants are required to file in HTML.)
HTML Format – Final Rule
Under the final rules, registrants will be required to file in HTML format most registration statements and other reports. While the affected registration statements and reports will be required to be filed in HTML pursuant to the amendments to Rule 105, registrants may continue to file in ASCII any schedules or forms that are not subject to the exhibit filing requirements under Item 601, such as proxy statements, or other documents included with a filing, such as an exhibit.
The amendments will affect all registrants that file registration statements and reports that are required to include exhibits under Item 601 of Regulation S-K, specifically Forms S-1, S-3, S-4, S-8, S-11, SF-1, SF-3, F-1, F-3 and F-4 under the Securities Act and Forms 10, 10-K, 10-Q, 8-K and 10-D under the Exchange Act. In addition, the amendments will affect registrants that file on Forms F-10 and 20-F.
Registrants must comply with the final rules for filings submitted on or after September 1, 2017. A registrant that is a “smaller reporting company”1 or a “non-accelerated filer”2 and that submits filings in ASCII need not comply with the final rules until September 1, 2018, one year after the effective date.
The compliance date with respect to any Form 10-D that will require hyperlinks to any exhibits filed with Form ABS-EE is delayed until SEC staff has completed technical programming changes to allow issuers to include such forms in a single submission. Once these programming changes are complete, the SEC will publish in the Federal Register a document notifying the public of the compliance date for Form 10-D.
A copy of the adopting release is available here, a copy of the press release issued by the SEC regarding the final rules is available here, and copies of Acting Chairman Michael S. Piwowar’s statement and Commissioner Kara M. Stein’s statement about the rules are available here and here.
1 As defined in Securities Act Rule 405 and Exchange Act Rule 12b-2.
2 Neither a “large accelerated filer” nor an “accelerated filer,” as defined in Exchange Act Rule 12b-2.