by Cydney Posner
The SEC has just issued a proposal to amend the rules to require that exhibits to registration statements and reports contain hyperlinks to the exhibits in the exhibit index and that these filings all be made in HTML format. The proposal, which was made in “furtherance of the objectives of the Disclosure Effectiveness Initiative,” is intended to facilitate easier access to exhibits for investors and other users of the information by eliminating the cumbersome process of searching through filings to find exhibits. Not terribly controversial, which probably explains the absence of an SEC open meeting for the vote to issue the proposal.
More specifically, the proposal would require registrants that file registration statements and periodic and current reports that are subject to the Reg S-K Item 601 exhibit requirements (or that file on Forms F-10 or 20-F) to include a hyperlink to each exhibit listed in the exhibit index of these filings, whether or not the exhibit is incorporated by reference. The only exceptions would be for the following:
- exhibits filed on paper under temporary or continuing hardship exemptions under Rules 201 or 202 of Reg S-T or under Rule 311 of Reg S-T;
- XBRL exhibits that are filed with the affected forms (because the XBRL exhibits are in unconverted code and not incorporated by reference into other filings);
- exhibits filed with Form ABS-EE; and
- exhibits incorporated by reference that were filed on paper prior to the time that electronic filing on EDGAR became mandatory and have not been refiled in electronic format.
For paper exhibits, Reg S-T would require that the letter “P” be placed next to the listed exhibit in the exhibit index of the electronic filing, together with various other designations, depending on the reason for the paper filing.
The proposed amendments would apply to Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, F-10, SF-1 and SF-3 under the Securities Act; and Forms 10, 10-K, 10-Q, 8-K, 10-D and 20-F under the Exchange Act. For periodic or current reports, the active hyperlink to each exhibit must be included when the report is filed. For registration statements, the active hyperlink to each exhibit would be required only in the version that becomes effective, thus allowing a complete exhibit index to be hyperlinked and located in one primary document. Of course, if the registration statement or post-effective amendment becomes effective immediately upon filing, active hyperlinks must be included at the time of filing.
In addition, because the ASCII format supports cross-references but not functional hyperlinks, to enable the inclusion of hyperlinks, the amendments would require registrants to submit these form filings in HTML format. The SEC notes that, during 2015, over 99% of the filings made on these forms were filed in HTML. Comments are due within 45 days after publication in the Federal Register.