New Form 8-K Reference Chart

Form 8-K Reference Chart
Form 8-K
Item
1.01 – Entry
into a Material
Definitive
Agreement
1.02 –
Termination of
a Material
Definitive
Agreement
Triggers
Disclosures
Section 1 – Registrant’s Business and Operations
Item 1.01(a):
Item 1.01(a):
• Entry into “material definitive agreement” not made in ordinary course of
• Date of agreement or amendment
business (whether or not subject to conditions)2
• Parties
• Brief description of any material relationship between
• Entry into any amendment to such an agreement that is material
company or affiliates and any of parties
• Brief description of material terms and conditions of
• Excluded from triggers:
agreement or amendment
– Agreements assumed or assigned to company in connection with a
merger, acquisition or similar transaction
Item 1.02(a):
Item 1.02(a):
• Date of termination
• Termination of “material definitive agreement” not made in the ordinary
course of business if termination is material
• Parties
• Brief description of any material relationship between
• Excluded from trigger:
company or affiliates and parties
– Expiration on stated termination date
• Brief description of material terms and conditions of
– Expiration as a result of all parties completing their obligations
agreement
– Negotiations or discussions prior to agreement termination
• Brief description of material circumstances surrounding
– If company believes in good faith that agreement has not been
termination
terminated, unless company receives notice of termination pursuant to
• Material early termination penalties incurred by company
terms of agreement
Safe
Harbor/S-3
Eligibility?1
Yes
Yes
Note: This chart does not reference specialized triggers and disclosures under various items of Form 8-K that apply to asset-backed securities.
1
2
Reflects items for which the limited safe harbor from Section 10(b) and Rule 10b-5 liability is available. The safe harbor provides protection from liability only for failure to timely file a report Form 8-K, and it extends
only until the due date of the Form 10-Q or 10-K for the period in which the Form 8-K was not timely filed. These items are also protected from loss of Form S-3 eligibility for failing to timely file a Form 8-K, as long as
the required disclosure is made before the Form S-3 registration statement is filed. See Exchange Act Rules 13a-11(c) and 15d-11(c) and General Instruction I.A.3(b) of Form S-3
A “material definitive agreement” is defined as an agreement that provides for obligations that are material to and enforceable against the company, or rights that are material to the company and enforceable by it against
one or more other parties, whether or not subject to conditions. Any material definitive agreement not made in the ordinary course of the company’s business must be disclosed. An agreement is deemed not made in the
ordinary course, even if it is such as ordinarily accompanies the kind of business conducted by the company, if it involves, among other things, the following:
•
Most contracts to which directors, officers, certain security holders or underwriters are parties, except management contracts and compensatory plans, contracts and arrangements in which directors, executive
officers and employees participate (which are separately covered under Item 5.02 of Form 8-K);
•
Contracts upon which the company’s business is substantially dependent;
•
Contracts calling for acquisition or sale of any property, plant or equipment for consideration exceeding 15% of company’s fixed assets; and
•
Material leases. (S-K Item 601(b)(10)(ii)(A)-(D))
1
Form 8-K
Item
1.03 –
Bankruptcy or
Receivership
2.01 –
Completion of
Acquisition or
Disposition of
Assets
3
4
Triggers
Item 1.03(a):
• Appointment of receiver, fiscal agent or similar officer for company or
parent under Bankruptcy Code or other state or federal proceeding where
jurisdiction or supervision over substantially all company or parent assets
or business has been assumed
Disclosures
Item 1.03(a):
• Name of proceeding
• Identity of court or governmental authority
• Date jurisdiction assumed
• Identity of receiver, fiscal agent or similar officer
• Date of appointment
Item 1.03(b):
• Entry, by court or governmental authority having supervision or
jurisdiction over substantially all of company or parent assets or business,
of order confirming plan of reorganization, arrangement or liquidation
Item 1.03(b):
• Identity of court or governmental authority
• Date that order confirming plan was entered by court or
governmental authority
• Summary of material features of plan and copy of plan (as an
exhibit)
• Number of shares or other units of company or parent issued
and outstanding, reserved for future issuance in respect of
claims and interests filed and allowed under plan and in total
• Assets and liabilities of company or parent as of date of entry
of order
Section 2 – Financial Information
• Completion by company or majority-owned subsidiary of “acquisition” or • Date of completion of transaction
“disposition” of “significant amount of assets” otherwise than in ordinary
• Brief description of assets involved
course of business (see Instructions 2, 3 and 4 to Form 8-K Item 2.01 and
• Identity of persons from whom assets acquired or to whom
S-X Rules 11.01(b) and 11.01(d) for definitions).
sold
• Any material relationship between above persons and
• Excluded from trigger:
company, any affiliates, any company director or officer or
− Transactions with wholly-owned subsidiaries or between wholly-owned
any associate of company director or officer
subsidiaries
• Nature and amount of consideration given or received
− Redemption or other acquisition of securities from the public, or sale or
• If material relationship is disclosed above, the formula or
other disposition of securities to public, by issuer or wholly-owned
principle followed in determining amount of consideration
subsidiary
• If transaction is an acquisition and if a material relationship
exists between company or any affiliates and sources of
funds, identity of sources of funds used
• If company is a shell company (other than a business combination shell company) 3 immediately before transaction,
Form 10 information reflecting all classes of company’s
securities subject to reporting requirements upon transaction4
Safe
Harbor/S-3
Eligibility?
No
No
Exchange Act Rule 12b-2 defines “shell company” and “business combination related shell company.”
Notwithstanding Form 8-K General Instruction B.3, if this disclosure is “previously reported,” as defined in Exchange Act Rule 12b-2, then the company may identify the previous filing in which that disclosure is
included instead of including the text of the required disclosures in Form 8-K.
2
(continued on next page)
3
Form 8-K
Item
2.02 – Results
of Operations
and Financial
Condition
Triggers
Disclosures
• Financial statements of businesses acquired, as required by
Form 8-K Item 9.01(a)
• Pro forma financial information, as required by Form 8-K
Item 9.01(b)
• Copy (filed as an exhibit) of plans of acquisition or
disposition, as required by Form 8-K Item 9.01(d)
Item 2.02(a):
• Public announcement or release by company (or person acting for
company) of material non-public information (including updated
information) regarding company’s results of operations or financial
condition for a completed quarterly or annual fiscal period
Item 2.02(a):
• Date of announcement or release
• Brief identification of announcement or release
• Text of announcement or release to be included as exhibit
• Excluded from trigger:
− Disclosure of material non-public information orally, telephonically, by
webcast, by broadcast or by similar means if related to a previously
furnished written announcement and certain disclosure conditions are
satisfied5
− Disclosure that is made in a Form 10-Q or Form 10-K filed with the
SEC
2.03 – Creation
of a Direct
Financial
Obligation or an
Obligation
under an OffBalance Sheet
Arrangement of
a Registrant
5
Item 2.03(a):
• Company becomes obligated on a “direct financial obligation” (long-term
debt obligation, capital lease obligation, operating lease obligation or nonordinary course short-term debt obligation) that is material to it (S-K Item
303(a)(5)(ii)(A), (B) and (C) and Form 8-K Item 2.03(e))
• Excluded from Item 2.03(a):
− Activities prior to company entering into an agreement enforceable
against it (whether or not subject to conditions) under which direct
financial obligation will arise or be created or issued, or
− If there is no agreement, activities prior to closing or settlement of
transaction or arrangement under which the direct financial obligation
arises or is created
Safe
Harbor/S-3
Eligibility?
No
No
Note that S-K Item 10(e)(10)(i) applies to the disclosures
Item 2.03(a):
• Date on which company becomes obligated
• Brief description of transaction or agreement creating the
obligation
• Amount of obligation, including terms of payment
• Brief description of material terms under which obligation
may be accelerated or increased
• Nature of any recourse provisions that would enable
company to recover from third parties
• Brief description of other material terms and conditions of
transaction or agreement
Yes
Conditions that must be satisfied for the exclusion to be satisfied:
• The information is part of a presentation that is complementary to, and initially occurs within 48 hours after, a related written announcement or release that has been furnished on Form 8-K under Item 2.02 prior
to the presentation;
• The presentation is broadly accessible to the public by dial-in conference call, by webcast, by broadcast or by similar means;
• The financial and other statistical information contained in the presentation is provided on company’s website, together with any information that would be required by Regulation G; and
• The presentation was announced by widely disseminated press release that included instructions as to when and how to access the presentation and the location on company’s website where the information
would be available.
4
5
Form 8-K
Item
Triggers
Item 2.03(b):
• Company becomes directly or contingently liable for an obligation that is
material to company arising out of an “off-balance sheet arrangement”
(S-K Item 303(a)(4)(ii))
• Excluded from triggers:
− Sale of a security pursuant to an effective registration statement of
company, if the prospectus relating to the sale contains the information
required by Item 2.03 and is filed within the required time period under
Securities Act Rule 424
2.04 –
Triggering
Events That
Accelerate or
Increase a
Direct Financial
Obligation or an
Obligation
under an OffBalance Sheet
Arrangement
6
7
8
Item 2.04(a):
• Occurrence of a “triggering event”6 related to a direct financial obligation:
− Which causes increase or acceleration of a direct financial obligation7 of
company, and
− Where consequences of “triggering event” are material8 to company
Disclosures
Item 2.03(b):
• Date company becomes directly or contingently liable
• Brief description of transaction or agreement creating
arrangement and obligation
• Brief description of nature and amount of obligation of
company under arrangement, including material terms
whereby it may become a direct obligation or may be
accelerated or increased
• Nature of any recourse provisions that would enable
company to recover from third parties
• Maximum potential amount of future payments
(undiscounted) that company may be required to make (not
reduced for amounts recoverable under recourse or
collateralization provisions in guarantees)
• Brief description of other material terms and conditions of
obligation or arrangement
Item 2.04(a):
• Date of “triggering event”
• Brief description of agreement or transaction under which
direct financial obligation was created and is increased or
accelerated
• Brief description of triggering event
• Amount of direct financial obligation and terms of payment
or acceleration that apply
• Any other material obligations of company that may arise,
increase, be accelerated or become direct financial
obligations as a result of “triggering event” or increase or
acceleration of direct financial obligation
Safe
Harbor/S-3
Eligibility?
Yes
Yes
“Triggering event” is an event, including an event of default, event of acceleration or similar event, as a result of which:
• A direct financial obligation of company or an obligation of company under an off-balance sheet arrangement, is increased or becomes accelerated; or
• A contingent obligation of company arising out of an off-balance sheet arrangement becomes a direct financial obligation of company.
Direct financial obligation is as defined for Item 2.03, but also includes obligations arising out of off-balance sheet arrangements accrued under SFAS No. 5 as a probable loss contingency.
Consider any material obligations of company that may arise, increase, be accelerated or become direct financial obligations as a result of the “triggering event” or the increase or acceleration of the direct financial
obligation.
6
Form 8-K
Item
Triggers
Item 2.04(b):
• Occurrence of a “triggering event” related to an off-balance sheet
arrangement:
− Which causes an obligation of company under an off-balance sheet
arrangement to increase or be accelerated or causes a contingent
obligation of company under such an arrangement to become a direct
financial obligation, and
− Where the consequences of the “triggering event” are material9
• Excluded from triggers:
− Activities prior to occurrence of a “triggering event” under terms of the
relevant agreement and satisfaction of all conditions to such occurrence,
except the passage of time
− If company believes in good faith that no “triggering event” has
occurred, unless company has received a notice of the occurrence of a
triggering event pursuant to the terms of the agreement, transaction or
arrangement
2.05 – Costs
Associated with
Exit or Disposal
Activities
9
10
• Board of Directors, Committee of Board of Directors, or officers
authorized to take action if Board action is not required:
− Commits company to an exit or disposal plan under which material
charges will be incurred under GAAP, or
− Otherwise disposes of a long-lived asset or terminates employees (under
a plan of termination described in paragraph 8 of SFAS No. 146) under
which material charges will be incurred under GAAP
Disclosures
Item 2.04(b):
• Date of “triggering event”
• Brief description of off-balance sheet arrangement
• Brief description of “triggering event”
• Nature and amount of obligation and terms of payment or
acceleration that apply
• Any other material obligations of company that may arise,
increase, be accelerated or become direct financial
obligations as a result of the “triggering event” or the
increase or acceleration of the obligation under the offbalance sheet arrangement or its becoming a direct financial
obligation
• Date of commitment to course of action
• Description of course of action, including facts and
circumstances leading to expected action and expected
completion date
• For each major type of cost associated with course of action,
an estimate of total amount or range of amounts expected to
be incurred (unless company is unable, in good faith, to do
so)10
• Estimate of total amount or range of amounts expected to be
incurred (unless company is unable, in good faith, to do so)10
• Estimate of the amount or range of amounts of the charge
that will result in future cash expenditures (unless company
is unable, in good faith, to do so)10
Safe
Harbor/S-3
Eligibility?
Yes
Consider any material obligations of company that may arise, increase, be accelerated or become direct financial obligations as a result of the “triggering event” or the increase or acceleration of the obligation under the
off-balance sheet arrangement or its becoming a direct financial obligation.
If unable in good faith to make this estimate, report estimate by amendment within four business days after estimate is determined.
7
Form 8-K
Item
2.06 – Material
Impairments
Triggers
• Conclusion by:
− Board of Directors,
− Committee of Board of Directors, or
− Officers authorized to take action if Board action is not required,
that a material charge for impairment to one or more company assets is
required under GAAP
• Excluded from trigger:
− Conclusions made in connection with preparation, review or audit of
financial statements required to be included in next periodic report due
to be filed under Exchange Act if:
♦ the periodic report is filed on a timely basis, and
♦ the conclusion is disclosed in the report
3.01 – Notice of
Delisting or
Failure to
Satisfy a
Continued
Listing Rule or
Standard;
Transfer of
Listing
Section 3 – Securities and Trading Markets
Item 3.01(a):
Item 3.01(a):
• Receipt of a qualifying delisting notice12 from national securities exchange • Date company received notice
or association that maintains principal listing for any class of company’s
• Rule or standard for continued listing that company fails to
“common equity”13 (regardless of whether there is a grace period to cure
satisfy
deficiency)
• Any action or response that, at time of filing, company has
determined to take in response to notice
Excluded from Item 3.01(a):
• Delisting results from certain redemptions, maturities, retirements,
exchanges and extinguishments of securities (see Instruction 1 to Form
8-K Item 3.01)
• Subsequent notices that continue to indicate that company does not
comply with same rule or standard for continued listing that was subject of
initial notice
Item 3.01(b):
• Notification by company to national securities exchange or association
that maintains principal listing for any class of company’s “common
equity” that company is aware of any material noncompliance with a rule
or standard for continued listing (regardless of whether there is a grace
period to cure deficiency)
11
12
13
Disclosures
• Date of conclusion
• Description of impaired asset
• Facts and circumstances leading to conclusion that charge for
impairment is required
• Estimate of amount or range of amounts of impairment
charge (unless company is unable, in good faith, to do so)11
• Estimate of amount or range of amounts of impairment
charge that will result in future cash expenditures (unless
company is unable, in good faith, to do so)11
Item 3.01(b):
• Date company provided the notice
• Rule or standard for continued listing that company fails to
satisfy
• Any action or response that, at time of filing, company has
determined to take regarding noncompliance
If unable in good faith to make this estimate, report estimate by amendment within four business days after estimate is determined.
A qualifying delisting notice is one that provides notice that:
•
company, or class of “common equity” for which national securities association maintains principal listing, does not satisfy a rule or standard for continued listing on the exchange or association;
•
the exchange has submitted an application under Exchange Act Rule 12d-2 to the SEC to delist such class of the company’s securities; or
•
the association has taken all necessary steps under its rules to delist the security from its automated inter-dealer quotation system.
As defined in Exchange Act Rule 12b-2.
8
Safe
Harbor/S-3
Eligibility?
Yes
No
(continued on next page)
9
Form 8-K
Item
Triggers
Excluded from Item 3.01(b):
• Subsequent notices that continue to indicate that company does not
comply with same rule or standard for continued listing that was subject of
initial notice
Disclosures
Item 3.01(c):
• Issuance by national securities exchange or association that maintains
principal listing for any class of company’s “common equity” of a public
reprimand letter or similar communication indicating that company has
violated a rule or standard for continued listing (in lieu of suspending
trading in or delisting such class)
Item 3.01(c):
• Date
• Summary of contents of letter or communication
Excluded from Item 3.01(c):
• Subsequent notices that continue to indicate that company does not
comply with same rule or standard for continued listing that was subject of
initial notice
Item 3.01(d):
• Definitive action by:
– Board of Directors,
– Committee of Board of Directors, or
– Officers authorized to take action if Board action is not required, to
cause listing of a class of “common equity” to be withdrawn from
national securities exchange that maintains principal listing for that class
(or terminated from automated inter-dealer quotation system of
registered national securities association), including transfer of listing to
another exchange
• Excluded from all Item 3.01 triggers:
Delisting actions and events associated with securities that are quoted
exclusively on automated inter-dealer quotation systems, where securities
are not otherwise listed on an exchange or association
10
Item 3.01(d):
• Date of action
• Description of action taken
Safe
Harbor/S-3
Eligibility?
Form 8-K
Item
3.02 –
Unregistered
Sales of Equity
Securities
Triggers
Item 3.02(a):
• Sale of equity securities:
– in a transaction that is not registered under the Securities Act, and
– where the amount of the equity securities sold, in the aggregate, since
the later of company’s last report filed under Form 8-K Item 3.02 or its
last periodic report, equals or exceeds 1% (5% for small business
issuers) of the number of shares outstanding of the class of equity
securities sold (excluding securities that may be issued upon conversion
of securities that are convertible into equity securities of that class)
• Excluded from trigger:
− Activities prior to company entering into an agreement enforceable
against company (whether or not subject to conditions) under which the
equity securities are to be sold, or
− If there is no agreement, activities prior to closing or settlement of
transaction or arrangement under which the equity securities are to be
sold
3.03 – Material
Modification to
Rights of
Security
Holders
Disclosures
Item 3.02(a):
• Date of sale
• Title and amount of securities sold
• For cash sales:
– aggregate offering price
– aggregate underwriting discounts or commissions
• For non-cash sales:
– nature of transaction
– nature and aggregate amount of consideration received by
company
• Section of the Securities Act or rule of the SEC under which
exemption from registration was claimed
• Brief statement of facts relied upon to make securities law
exemption available
• For securities convertible or exchangeable into equity
securities, or warrants or options representing equity
securities, the terms of conversion or exercise
Item 3.03(a):
• Material modification to constituent instruments defining the rights of the
holders of any class of company’s registered securities
Item 3.03(a):
• Date of modification
• Title of class of securities involved
• Brief description of general effect of modification upon
rights of holders of the securities
Item 3.03(b):
• Material limitation or qualification of rights of holders of any class of
registered securities due to issuance or modification, by company, of any
other class of securities
Item 3.03(b):
• Date of issuance or modification
• General effect of issuance or modification of other class
upon the rights of holders of the registered securities
Note that working capital restrictions and other limitations upon the payment
of dividends must be reported under Item 3.03
11
Safe
Harbor/S-3
Eligibility?
No
No
Form 8-K
Item
4.01 – Changes
in Registrant’s
Certifying
Accountant
Triggers
Disclosures
Section 4 – Matters Related to Accountants and Financial Statements
Item 4.01(a):
Item 4.01(a):
• Whether the former accountant resigned, declined to stand
• Resignation of, indication of declination to stand for reappointment after
for re-election or was dismissed
completion of current audit by, or dismissal of:
– Independent accountant who was previously engaged as principal
• Date of resignation, declination or dismissal
accountant to audit company’s financial statements, or
• Whether the principal accountant’s report on the financial
– Independent accountant upon whom the principal accountant expressed
statements for either of the past two years:
reliance in its report regarding a significant subsidiary
– Contained an adverse opinion or a disclaimer of opinion,
or
– Was qualified or modified as to uncertainty, audit scope or
accounting principles
• Nature of each such adverse opinion, disclaimer of opinion,
modification or qualification
• Whether decision to change accountants was recommended
or approved by:
– Audit or similar Board committee, or
– Board of Directors, if no such committee
• Information about certain disagreements regarding certain
accounting, auditing or financial statement disclosure matters
with former accountant during company’s two most recent
fiscal years and any subsequent interim period preceding the
resignation, declination or dismissal14
Safe
Harbor/S-3
Eligibility?
No
(continued on next page)
14
Disclosure must include information about disagreements (regardless of manner in which resolved) on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which
if not resolved satisfactorily to the former accountant would have caused the accountant to make reference to the subject matter of the disagreement in connection with its report, including:
•
Description of each disagreement;
•
Whether any audit or similar Board committee, or the Board of Directors, discussed the subject matter of each disagreement with the former accountants; and
•
Whether company authorized the former accountant to respond fully to the inquiries of the successor accountant concerning the subject matter of each disagreement and, if not, the nature of any limitation and the
reason for it.
Disagreements are those that occur at decision-making level – between company personnel responsible for presentation of company financial statements and personnel of accounting firm responsible for rendering its
report. The term “disagreements” is to be interpreted broadly, to include any difference of opinion concerning any matter of accounting principles or practices, financial statement disclosure, or auditing scope or
procedure which (if not resolved to the satisfaction of the former accountant) would have caused it to make reference to the subject matter of the disagreement in connection with its report. It is not necessary for there to
have been an argument to have had a disagreement, merely a difference of opinion. However, the term "disagreements" does not include initial differences of opinion based on incomplete facts or preliminary information
that were later resolved to the former accountant's satisfaction by, and providing the company and accountant do not continue to have a difference of opinion upon, obtaining additional relevant facts or information.
12
Form 8-K
Item
Triggers
Disclosures
• Information about any “reportable events” 15 (other than
Safe
Harbor/S-3
Eligibility?
disagreements, which are reportable under the preceding
requirement) occurring during company’s two most recent fiscal
years and any subsequent interim period preceding the
resignation, declination or dismissal16
• Copy (filed as an exhibit) of any letter received from former
accountant regarding disclosures being made by company17
15
16
17
A “reportable event” is defined to include:
• The accountant advising company that the internal controls necessary for company to develop reliable financial statements do not exist;
• The accountant advising company that information has come to its attention that has led it to no longer be able to rely on management’s representations, or that has made it unwilling to be associated with the
financial statements prepared by management;
• The accountant advising company of the need to expand significantly the scope of its audit or that information has come to its attention during the relevant period that if further investigated may:
– materially impact the fairness or reliability of either (i) a previously issued audit report or the underlying financial statements or (ii) the financial statements issued or to be issued covering the fiscal periods
subsequent to the date of the most recent financial statements covered by an audit report (including information that may prevent it from rendering an unqualified audit report on those financial statements); or
– cause it to be unwilling to rely on management’s representations or be associated with company’s financial statements;
where for whatever reason (including but not limited to the resignation or dismissal of the accountant) the accountant did not so expand the scope of its audit or conduct the further investigation; and
• The accountant advising company that information has come to its attention that it has concluded materially impacts the fairness or reliability of either:
– a previously issued audit report or the underlying financial statements; or
– the financial statements issued or to be issued covering the fiscal periods subsequent to the date of the most recent financial statements covered by an audit report;
where for whatever reason (including but not limited to the accountant’s resignation, dismissal or declination to stand for re-election) the issue has not been resolved to the accountant’s satisfaction prior to its
resignation, dismissal or declination to stand for re-election.
Disclosure must include:
•
Description of each reportable event;
•
Whether any audit or similar Board committee, or the Board of Directors, discussed the subject matter of each event with the former accountant; and
•
Whether company authorized the former accountant to respond fully to the inquiries of the successor accountant concerning the subject matter of each event and, if not, the nature of any limitation and the reason for
it.
Company must provide a copy of the disclosures to the former accountant not later than the day they are filed with the SEC and request that the accountant furnish company, as promptly as possible and in any event
within 10 business days after filing the Form 8-K, with a letter addressed to the SEC stating whether it agrees with the statements being made by company and, if not, how it does not agree. Company must file the former
accountant’s letter as an exhibit to the Form 8-K, or by an amendment within two business days after receipt.
13
Form 8-K
Item
4.02 – NonReliance on
Previously
Issued Financial
Statements or a
Related Audit
Report or
Completed
Interim Review
18
19
20
Triggers
Item 4.01(b):
• Engagement of new independent accountant as either principal accountant
to audit company’s financial statements or as independent accountant on
whom principal accountant is expected to express reliance in its report
regarding a significant subsidiary
Disclosures
Item 4.02(a):
• Conclusion by:
– Board of Directors
– Committee of Board of Directors
– Officers authorized to take action if Board action not required, that any
previously issued financial statements, covering one or more years or
interim periods for which company is required to provide financial
statements under Regulation S-X, should no longer be relied upon
because of an error in the financial statements (as addressed in APB
Opinion No. 20)
Item 4.02(a):
• Date of conclusion
• Identification of financial statements and years or periods
covered that should no longer be relied upon
• Brief description of facts underlying conclusion, to extent
known by company at time of filing
• Whether the audit committee, or the Board if no audit
committee, or authorized officers, discussed with company’s
independent accountant the matters being disclosed
Safe
Harbor/S-3
Eligibility?
Item 401(b):
• Identify new accountant
• Date of engagement
• Information about prior consultations with new accountant
about certain accounting matters18 during company’s two most
recent fiscal years and any subsequent interim period preceding
the engagement of the new accountant19
• Copy (filed as an exhibit) of any letter received from newly
engaged accountant regarding disclosures being made by
company20
Yes, for
Item 4.02(a)
No, for Item
4.02(b)
Matters covered include:
•
Application of accounting principles to a specified completed or proposed transaction, or the type of audit opinion that might be rendered on company’s financial statements, where either a written report was
provided to company or oral advice was provided that the new accountant concluded was an important factor considered by company in reaching a decision as to the accounting, auditing or financial reporting issue;
or
•
Any matter that was either the subject of a “disagreement” or a “reportable event.”
Disclosures must include:
•
The existence of the consultations and the issues that were the subject of the consultations;
•
Description of views of the newly engaged accountant as expressed orally or in writing to company on each issue and, if written views were received by company, copy of writing (filed as an exhibit); and
•
Whether the former accountant was consulted by company regarding any of these issues and, if so, a summary of the former accountant’s views.
Company must provide a copy of the disclosures it is making to the accountant before they are filed with the SEC and request that the accountant review the disclosures before they are filed. The accountant must be
provided an opportunity to furnish company with a letter addressed to the SEC containing any new information, clarification of company’s expression of its views or respects in which it does not agree with company’s
statements. Company must file any letter received as an exhibit to the Form 8-K.
14
Form 8-K
Item
5.01 – Changes
in Control of
Registrant
21
22
23
Triggers
Item 4.02(b):
• Company is advised by, or receives notice from, independent accountant
that disclosure should be made or action should be taken to prevent future
reliance on a previously issued audit report or completed interim review
related to previously issued financial statements
Disclosures
Item 4.02(b):
• Date of advice or notice
• Identification of financial statements that should no longer be
relied upon
• Brief description of information provided by accountant
• Whether the audit committee, or Board in the absence of any
audit committee, or authorized officers, discussed with the
independent accountant the matters disclosed in filing
• Copy (filed as an exhibit) of any letter received from
accountant regarding disclosures being made by company21
Section 5 – Corporate Governance and Management
Item 5.01(a):
Item 5.01(a):
• Identity of persons who acquired control
• To the knowledge of company’s Board, a committee of the Board or
authorized officers, a change in control of company has occurred
• Date
• Description of transactions which resulted in change in
control
• Basis of control, including % of voting securities of company
now beneficially owned by persons who acquired control
• Amount of consideration used
• Sources of funds used
• Identity of persons from whom control was assumed
• Any arrangements or understandings among members of
former and new control groups and their associates regarding
election of directors or other matters
• If company is a shell company (other than a business
combination related shell company) 22 immediately before
change in control, Form 10 information reflecting all classes
of the company’s securities subject to reporting requirements
upon change in control23
• Description of any arrangements (including pledges), known
to company, which could later result in a change in control of
company
Safe
Harbor/S-3
Eligibility?
No, for
items
5.01(a), (b),
(c), (d) and
(f)
Company must provide a copy of the disclosures it is making to the accountant not later than the day they are filed with the SEC and request that the accountant furnish company as promptly as possible with a letter
addressed to the SEC stating whether it agrees with the statements being made by company and, if not, how it does not agree. Company must file the accountant’s letter as an exhibit to the Form 8-K, or by amendment
within two business days after receipt.
Exchange Act Rule 12b-2 defines “shell company” and “business combination related shell company.”
Notwithstanding Form 8-K General Instruction B.3, if this disclosure is “previously reported,” as defined in Exchange Act Rule 12b-2, then the company may identify the previous filing in which that disclosure is
included instead of including the text of the required disclosures in Form 8-K.
15
Form 8-K
Item
5.02 –
Departure of
Directors or
Certain
Officers;
Election of
Directors;
Appointment of
Certain
Officers;
Compensatory
Arrangements
of Certain
Officers
Triggers
Item 5.02(a):
• Director:
– Resigns or refuses to stand for re-election to Board since date of last
annual meeting of shareholders because of:
♦ a disagreement with company on any matter relating to company’s
operations, policies or practices,
♦ that is known to an executive officer of company, or
– Has been removed for cause from Board
Disclosures
Item 5.02(a):
• Date of resignation, refusal or removal
• Positions held by director on any committee of Board at that
time
• Brief description of circumstances representing disagreement
that company believes caused, in whole or part, the director’s
resignation, refusal or removal
• Copy (filed as an exhibit) of any written correspondence
furnished to company by director regarding circumstances
surrounding resignation, refusal or removal
• Copy (filed as an exhibit) of any letter received from director
regarding disclosures being made by company25
Item 5.02(b):
• Retirement, resignation or termination from position of:
– principal executive officer
– president
– principal financial officer
– principal accounting officer
– principal operating officer
– person performing similar functions to any of above
– named executive officer24
Item 5.02(b):
• The fact that the event has occurred
• Date
Safe
Harbor/S-3
Eligibility?
No, for
Items
5.01(a), (b),
(c), (d) and
(f)
Yes, for
Item 5.02(e)
• Retirement, resignation, removal or refusal to stand for re-election of
director (other than in connection with a disagreement covered above)
24
25
"Named executive officer" refers to those executive officers for whom disclosure was required in the company's most recent filing with the SEC under the Securities Act or Exchange Act that required executive
compensation disclosure pursuant to Regulation S-K Item 402(c).
Company must provide the director with a copy of the disclosures it is making no later than the day they are filed with the SEC and provide the director the opportunity to furnish company, as promptly as possible, with a
letter addressed to company stating whether the director agrees with the disclosures being made and, if not, how it does not agree. Company must file any such letter as an exhibit to the Form 8-K, or by amendment
within two business days after receipt.
16
Form 8-K
Item
Triggers
Item 5.02(c):
• Appointment of new:
– principal executive officer
– president
– principal financial officer
– principal accounting officer
– principal operating officer
– person performing similar functions to any of above
Disclosures
Item 5.02(c):
• Name and positions of newly appointed officer, including
term and prior period of service as company officer
• Date of appointment
• Age of newly appointed officer
• Brief description of any arrangement or understanding
between the officer and any other person (naming the person)
pursuant to which he was or is to be selected as an officer
• The nature of any family relationship26 between the newly
appointed officer and any director, executive officer or
person nominated or chosen by company to become a
director or executive officer
• Brief description of the business experience during the past
five years of the newly appointed officer27
• Brief description of any related person transaction under
Regulation S-K Item 404(a)28
Safe
Harbor/S-3
Eligibility?
(continued on next page)
26
27
28
“Family relationship” means any relationship by blood, marriage or adoption, not more remote than first cousin.
Disclosure must include:
•
Principal occupations and employment;
•
Name and principal business of any corporation or other organization in which those occupations and employment were carried on; and
•
Whether the corporation or organization is a parent, sub or other affiliate of company.
Disclosure must cover any “transaction” since the beginning of company’s last fiscal year, or any currently proposed “transaction,” in which company or any of its subsidiaries was or is to be a participant, where the
amount involved exceeds $120,000 and in which the newly appointed officer, or any member of his or her “immediate family,” had, or will have, a direct or indirect material interest, including:
•
The name of the related person;
•
The basis on which the person is a related person;
•
The nature of the related person’s interest in the transaction, including the related person’s position or relationship with, or ownership in, a firm, corporation or other entity that is a party to, or has an interest in, the
transaction;
•
The dollar value of the transaction;
•
The dollar value of the related person’s interest in the transaction;
•
In the case of indebtedness, the largest aggregate amount of principal outstanding during the disclosure period, the amount outstanding as of the latest practicable date, the amount of principal paid during the
disclosure period, the amount of interest paid during the disclosure period and the rate or amount of interest payable on the indebtedness; and
•
Any other information regarding the transaction or the related person in the context of the transaction that is material to investors in light of the circumstances of the particular transaction.
"Immediate family" members include any child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law of the newly appointed officer, and
any person (other than a tenant or employee) sharing the household of such officer. "Transaction" includes, but is not limited to, any financial transaction, arrangement or relationship (including any indebtedness or
guarantee of indebtedness) or any series of similar transactions, arrangements or relationships.
17
Form 8-K
Item
29
30
Triggers
Disclosures
• Brief description of any material plan, contract or
arrangement29 (whether or not written) to which officer is a
party or in which he participates that is entered into in
connection with appointment
• Brief description of any material amendment of any such
plan, contract or arrangement29 in connection with
appointment
• Brief description of any grant or award to officer, or any
modification of an existing grant or award, under any such
plan, contract or arrangement29 in connection with
appointment
Item 5.02(d):
• Election of a new director, except by vote of security holders at an annual
meeting or special meeting convened for that purpose
Item 5.02(d):
• Name of newly elected director
• Date of election
• Brief description of any arrangement or understanding
between new director and any other persons (including their
names) pursuant to which the director was selected
• Committees of Board to which the new director has been, or
at time of disclosure is expected to be, named
• Brief description of any related person transaction30
• Brief description of any material plan, contract or
arrangement29 (whether or not written) to which director is a
party or in which he participates that is entered into in
connection with his election
• Brief description of any material amendment of any such
plan, contract or arrangement29 in connection with director’s
election
• Brief description of any grant or award to the newly
appointed director, or any modification of any existing grant
or award, under any such plan, contract or arrangement29 in
connection with his election
Safe
Harbor/S-3
Eligibility?
No disclosure needs to be provided with respect to plans, contracts and arrangements to the extent that they do not discriminate in scope, terms or operation, in favor of executive officers or directors of the company, and
such plans, contracts and arrangements are available generally to all salaried employees.
The types of required disclosures are the same as those required for newly appointed officers under Form 8-K Item 5.02(c). See Note 28 above.
18
Form 8-K
Item
Triggers
Item 5.02(e):
• Company enters into, adopts or otherwise commences a material
compensatory plan, contract or arrangement31 (whether or not written) as
to which any of the following are participants or parties:
– principal executive officer
– principal financial officer
– a named executive officer
• Material amendment or modification of such a compensatory plan,
contract or arrangement31
• Material grant or award under any such plan, contract or arrangement31 is
made to one of covered officers
• Material modification of such a grant or award
Disclosures
Item 5.02(e):
• Brief description of terms and conditions of plan, contract or
arrangement
• Amounts payable to the covered officers thereunder
Item 5.02(f):
• Payment, grant, award, decision or other occurrence as a result of which
amounts of salary or bonus of a named executive officer, which could not
be calculated as of the most recent practicable date and were omitted from
the Summary Compensation Table in accordance with instructions thereto
in Regulation S-K Item 402, become calculable in whole or part
Item 5.02(f):
• Revised amounts of salary and/or bonus that are now
calculable, as well as any other information that would have
been required about such amounts if the information had
been included in Summary Compensation Table
• New total compensation figure for named executive officer,
using the new salary and/or bonus information to recalculate
the information that was previously provided
Excluded from all Item 5.02 triggers:
• Companies that are wholly-owned subsidiaries of issuers with a class of
securities registered under Exchange Act Section 12, or required to file
reports under Exchange Act Section 15(d)
31
Safe
Harbor/S-3
Eligibility?
Excluded from disclosure under Item 5.02(e):
• Grants or awards (or modifications thereto) made pursuant to
a plan, contract or arrangement (whether involving cash or
equity), that are materially consistent with the previously
disclosed terms of such plan, contract or arrangement,
provided that the company has previously disclosed such
terms and the grant, award or modification is disclosed when
Regulation S-K Item 402 requires such disclosure
Note that, if the information about:
– any material plans, contracts or arrangements to which a
newly appointed officer is a party, or in which he
participates, that are entered into or materially amended in
connection with his appointment,
– any grants or awards to a newly appointed officer, or
modifications to existing grants or awards, under any such
plans, contracts or arrangements in connection with his
appointment,
– the committees of the Board to which a new director will
be named, or
– any related person transactions involving company and the
new director,
is not determined or is unavailable at the time of the filing,
company must state that in the original filing and then file an
amendment containing that information once it is determined or
becomes available.
No disclosure needs to be provided with respect to plans, contracts and arrangements to the extent that they do not discriminate in scope, terms or operation, in favor of executive officers or directors of the company, and
such plans, contracts and arrangements are available generally to all salaried employees.
19
Form 8-K
Item
5.03 –
Amendments to
Articles of
Incorporation or
Bylaws; Change
in Fiscal Year
5.04 –
Temporary
Suspension of
Trading Under
Registrant’s
Employee
Benefit Plans
5.05 –
Amendments to
the Registrant’s
Code of Ethics
or Waiver of a
Provision of the
Code of Ethics
32
Triggers
Item 5.03(a):
• Amendment of articles or incorporation or bylaws by company with class
of equity securities registered under Exchange Act Section 12, when a
proposal for the amendment was not disclosed in a proxy statement or
information statement filed by company
Disclosures
Item 5.03(a):
• Effective date of amendment
• Description of provision adopted or changed by amendment
and, if applicable, the previous provision
• Text of the amendment (filed as an exhibit)
Item 5.03(b):
• Determination to change fiscal year from that used in most recent filing
with SEC, other than by:
– Submission to a vote of security holders through solicitation of proxies
or otherwise
– Amendment to articles of incorporation or bylaws
Item 5.03(b):
• Date of determination
• Date of new fiscal year end
• Form on which report covering the transition period will be
filed
Item 5.04(a):
• Receipt by company of notice required by Section 101(i)(2)(E) of ERISA
Item 5.04(a):
• Information specified by Rule 104(b) of Regulation BTR
• Date company received the ERISA notice
• If the ERISA notice is not received by company, transmission by company
of a timely notice to an affected officer or director under Rules
104(b)(2)(i)(B) or 104(b)(2)(ii) of Regulation BTR
Item 5.04(b):
• Transmission of timely updated notice to affected officer or director under
Rule 104(b)(2)(iii) of Regulation BTR
Item 5.04(b):
• Information specified in Rule 104(b)(3)(iii) of Regulation
BTR
Item 5.05(a):
• Amendment to a provision of company’s “code of ethics”32 that:
– Applies to company’s:
♦ principal executive officer,
♦ principal financial officer,
♦ principal accounting officer or controller or
♦ persons performing similar functions, and
– Relates to any element of the code of ethics definition enumerated in
Regulation S-K Item 406(b)
Item 5.05(a):
• Date of amendment
• Brief description of nature of amendment
“Code of ethics” is defined in Regulation S-K Item 406(b) to mean written standards that are reasonably designed to deter wrongdoing and to promote:
– honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;
– full, fair, accurate, timely and understandable disclosure in reports and documents that a company files with, or submits to, the SEC and in other public
communications made by company;
– compliance with applicable governmental laws, rules and regulations;
– prompt internal reporting of violations of the code to an appropriate person identified in the code; and
– accountability for adherence to the code.
20
Safe
Harbor/S-3
Eligibility?
No
No
No
Form 8-K
Item
Triggers
Item 5.05(b):
• Grant by company of a waiver (including implicit waiver)33 from a
provision of the “code of ethics” to an officer or person listed above,
where waiver relates to one or more elements of Regulation S-K Item
406(b) code of ethics definition
Disclosures
Item 5.05(b):
• Brief description of nature of waiver
• Name of person to whom waiver granted
• Date of waiver
Safe
Harbor/S-3
Eligibility?
Excluded from triggers:
• Amendments or waivers:
–With respect to which the required Form 8-K information was disclosed
on company’s Internet website within four business days following the
date of the amendment or waiver,
–Where company has disclosed in its most recently filed annual report its
Internet address and intention to provide disclosure in this manner, and
–Where the disclosures remain available on the website for at least a
12-month period (and are retained by company for at least five years)
• Technical, administrative or other non-substantive amendments
Note that Nasdaq requires disclosure in Form 8-K within four business days
if there are waivers granted to directors or executive officers of Nasdaq
issuers’ “codes of conduct” (Nasdaq Listing Rule 5610)
5.06 – Change
in Shell
Company Status
• Completion of a transaction by a company that was a shell company (other
than a business combination related shell company) 34 that has the effect of
causing it to cease being a shell company
• Material terms of transaction35
No
5.07 –
Submission of
Matters to a
Vote of Security
Holders
• Matter submitted to a vote of security holders
•
•
•
•
•
•
No
(effective
February 28,
2010)
33
34
35
Date of meeting
Annual or special meeting
Name of each director elected
Brief description of other matters voted upon
Votes for, against, abstaining, non-votes
Terms of any settlement with proxy solicitation participant
“Waiver” is defined as the approval by company of a material departure from a provision of the code of ethics. “Implicit waiver” is defined as company’s failure to take action within a reasonable period of time
regarding a material departure from a provision of the code of ethics that has been made known to an executive officer.
Exchange Act Rule 12b-2 defines “shell company” and “business combination related shell company.”
Notwithstanding Form 8-K General Instruction B.3, if this disclosure is “previously reported,” as defined in Exchange Act Rule 12b-2, then the company may identify the previous filing in which that disclosure is
included instead of including the text of the required disclosures in Form 8-K.
21
Form 8-K
Item
Triggers
Disclosures
Section 6 – Asset-Backed Securities
Safe
Harbor/S-3
Eligibility?
Section 6 of Form 8-K provides numerous specialized disclosure requirements that apply only to asset-backed securities. This chart does not summarize the disclosure triggers or
substantive disclosures that are required by Section 6.
7.01 –
Regulation FD
Disclosure
8.01 – Other
Events
Section 7 – Regulation FD
• Material non-public information regarding company or its
• Disclosure of material non-public information subject to Regulation FD,
where company elects to make the disclosure through Form 8-K but does
securities
not want the disclosed information to be deemed “filed”
Section 8 – Other Events
• Optional disclosure of any events, with respect to which information is not
otherwise called for by Form 8-K, that company deems of importance to
security holders
22
Not through
Form 8-K
but through
Regulation
FD
No
Form 8-K
Item
9.01 – Financial
Statements and
Exhibits
(
Triggers
Disclosures
Section 9 – Financial Statements and Exhibits
Item 9.01(a):
Item 9.01(a):
• Financial statements of business acquired for periods
• Business acquisition reportable under Item 2.01
specified in Regulation S-X Rule 3-05(b)36
Item 9.01(b):
• Any acquisition or disposition transaction reportable under Item 2.01
Item 9.01(b):
• Pro forma financial information that would be required
pursuant to Regulation S-X Article 1137
Item 9.01(d):
• Certain Form 8-K exhibits required if relevant to subject matter reported
on Form 8-K
Item 9.01(d):
• Underwriting agreement
• Plan of acquisition, reorganization, arrangement, liquidation
or succession
• Articles of Incorporation or Bylaws
• Instruments defining the rights of security holders
• Correspondence from independent accountants regarding
non-reliance on previously issued audit report or completed
interim review
• Codes of ethics
• Letters regarding changes in certifying accountants
• Correspondence regarding departure of directors
• Consent of experts, when applicable
Safe
Harbor/S-3
Eligibility?
No
A9077/00000/DOCS/1447828.7
36
37
For most companies, these financial statements may be filed with the initial report or by amendment not later than 71 calendar days after the due date of the initial report. If not filed with the initial report, the report
should indicate that and state when the financial statements will be filed. Unaudited financial statements may be optionally provided in the initial report. However, for transactions required to be described by Item 2.01
for companies that were shell companies (other than business combination related shell companies) immediately before the transaction, the financial statements required by Item 9.01(a) must be filed in the initial report.
Notwithstanding Form 8-K General Instruction B.3, if the required financial statements with respect to the shell company transaction are “previously reported,” as defined in Exchange Act Rule 12b-2, then the company
may identify the previous filing in which that disclosure is included instead of including the text of the required disclosures in Form 8-K.
For most companies, for acquired businesses (but not disposed businesses), these financial statements may be filed within 71 calendar days of the due date of the initial report, as described in Note 36 above. However,
for transactions required to be described by Item 2.01 for companies that were shell companies (other than business combination related shell companies) immediately before the transaction, the pro forma financial
information required by Item 9.01(b) must be filed in the initial report. Notwithstanding Form 8-K General Instruction B.3, if the required pro forma financial information with respect to the shell company transaction is
“previously reported,” as defined in Exchange Act Rule 12b-2, then the company may identify the previous filing in which that disclosure is included instead of including the text of the required disclosures in Form 8-K.
23