On March 1, 2017 the Securities and Exchange Commission (the SEC) adopted final rules requiring that (i) all registration statements filed under the Securities Act of 1933 and current and periodic reports filed or furnished under the Securities Exchange Act of 1934 be submitted in HTML format (as opposed to ASCII format) and (ii) the exhibit index to such registration statements and reports contain active hyperlinks to the exhibits filed or furnished therewith or incorporated by reference therein.

Overview

Specifically, the adopting release provides that:

• Active HTML hyperlinks are required for all prospective exhibit filings, including exhibits incorporated by reference from prior filings;
• No hyperlinks are required for older exhibits that were filed in paper copy and are not available electronically via EDGAR; however, the SEC encourages issuers to refile paper copy exhibits in electronic format;
• No hyperlinks are required for exhibits filed in XBRL format;
• With respect to registration statements, exhibit hyperlinks are required to be included in the initial filing, all pre-effective amendments, and the version of the registration statement that becomes effective;
• In accordance with existing Rule 105(b) of Regulation S-T, all hyperlinks must be limited to documents filed within the EDGAR system;
• An inaccurate exhibit hyperlink, alone, would not render a filing materially deficient nor affect an issuer’s S-3 eligibility;
• The SEC will update the EDGAR Filer Manual to describe the procedures needed to create exhibit hyperlinks.

Timing

• The exhibit index hyperlink requirement is effective September 1, 2017, which for calendar year filers means that (absent a prior registration statement or 8-K filing) the third quarter Form 10-Q will be the first filing requiring hyperlinked exhibits.
• Certain non-accelerated filers and smaller reporting companies have until September 1, 2018 to phase in the new requirements.

Additional Information

If you have questions about the final rules, contact your Kutak Rock LLP attorney, the authors of this client alert or a member of our Corporate and Securities Practice Group.