Author: Edward Welch
Published by: Morrison & Foerster LLP
Form 8-K is the form on which public companies report, on a current basis, the occurrence of significant corporate events. A reportable event is a transaction or occurrence of major significance. The Securities and Exchange Commission (the “SEC“) periodically expands the list of items requiring disclosure on Form 8-K and alters the time within which a Form 8-K must be filed.
All U.S. “reporting” companies are responsible for filing Forms 8-K. Foreign issuers that report in the United States use a Form 6-K, which has different requirements.
Form 8-K identifies events that require the filing of a Form 8-K and provides detailed instructions for filing. The following is a list of the events that trigger a filing along with the corresponding section and Item references from Form 8-K:
Item 1.01 Entry into a Material Definitive Agreement
Item 1.02 Termination of a Material Definitive Agreement.
Item 1.03 Bankruptcy or Receivership.
Item 2.01 Completion of Acquisition or Disposition of Assets.
Item 2.03 Results of Operations and Financial Condition.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement of a Registrant.
Item 2.04 Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement
Item 2.05 Costs Associated with Exit or Disposal Activities.
Item 2.06 Material Impairments
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer or Listing.
Item 3.02 Unregistered Sales of Equity Securities
Item 3.03 Material Modification to Rights of Security Holders.
Item 4.01 Changes in Registrant’s Certifying Accountant.
Item 4.02 Non-reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review.
Item 5.01 Changes in Control of Registrant
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Results from any of the following situations:
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Item 5.04 Temporary Suspension of Trading under Registrant’s Employee Benefit Plans.
Item 5.05 Amendments to the Registrant’s Code of Ethics, Or Waiver of a Provision of the Code of Ethics.
Item 5.06 Change in Shell Company Status.
Item 5.07 Submission of Matters to a Vote of Security Holders.
The items in this Section 6 apply only to asset-backed securities.
Item 6.01 ABS Informational and Computational Material.
Item 6.02 Change of Servicer or Trustee.
Item 6.03 Change in Credit Enhancement or Other External Support
Item 6.04 Failure to Make a Required Distribution
Item 6.05 Securities Act Updating Disclosure
Item 7.01 Regulation FD Disclosure
Item 8.01 Other Events
Item 9.01 Financial Statements and Exhibits.
No. The issuer may include multiple items in a single Form 8-K, and any exhibit may be cross-referenced within the same Form 8-K. Common instances when this is necessary include:
Subject to certain exceptions described below, a Form 8-K must generally be filed within four business days of the triggering event.
The penalties for non-compliance can be severe and include the company’s loss of the right to use Form S-3 for both primary and secondary offerings (however, failure to file within the required time period with respect to events subject to Items 1.01, 1.02, 2.03-2.06, 4.02(a), or 5.20(e) will not affect an issuer’s right to use Form S-3).
No failure to file under the following Items shall be deemed a violation of Section 10 of the Exchange Act and Rule 10b-5: 1.01, 1.02, 2.03-2.06, 4.02(a), 5.02(e), or 6.03.
In addition, SEC guidance makes clear that the failure to properly file a Form 8-K may be considered prima facie evidence of a lack of a sufficient disclosure controls under the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”).
Yes. Triggering events apply to issuers and subsidiaries. For example, entry by a subsidiary into a non-ordinary course definitive agreement that is material to the issuer is reportable under Item 1.01.
No. If an agreement becomes material to the issuer but was not material to the issuer when it entered into, or amended, the agreement, the issuer need not file a Form 8-K under Item 1.01, unless the agreement is material to the issuer at the time of an amendment to that agreement. In any event, the issuer must file the agreement as an exhibit to the periodic report relating to the reporting period in which the agreement became material if, at any time during that period, the agreement was material to the issuer.
Yes. Once notice of termination pursuant to the terms of the agreement has been received, the Form 8-K is required. See Instruction 2 to Item 1.02.
No. That situation is not covered under the phrase “is removed.” However, if the director, upon receiving notice from the issuer that it does not intend to nominate him or her for reelection, then resigns his or her position as a director, then a Form 8-K would be required pursuant to Item 5.02. If the director tells the issuer that he or she refuses to stand for reelection, a Form 8-K is required because the director has communicated a “refusal to stand for reelection,” whether or not in response to an offer by the issuer to be nominated.
Yes. The term “termination” includes situations where an officer identified in Item 5.02 has been demoted or has had his or her duties and responsibilities removed such that he or she no longer functions in the position of that officer.
No. A Form 8-K is not required to be filed when the issuer is merely restating its articles of incorporation, without making any substantive changes. However, we recommend that issuers refile their complete articles of incorporation, if restated, in their next periodic report for ease of reference by investors.
Section 18 of the Exchange Act imposes liability for material misstatements or omissions contained in reports and other information filed with SEC. By contrast, reports and other information that are “furnished” to SEC (to the extent expressly permitted under applicable SEC rules) do not attract liability under Section 18. Note, however, that other liability provisions under the Exchange Act may apply that are not dependent on the filing of documents with the SEC but may otherwise be triggered by disclosure made by the company to the public. See, e.g., Section 10(b) of the Exchange Act and Rule 10b-5
No. Sections 302 and 906 of Sarbanes Oxley require an issuer’s principal executive and financial officers each to certify the financial and other information contained in the issuer’s periodic reports, which are its quarterly and annual reports. No such certification is required even if the Form 8-K contains financial statements.
The cover page of Form 8-K allows the company to “check” one or more boxes on the front cover of Form 8-K to indicate that the Form 8-K is being used to satisfy other specified filing requirements. If the company checks the first box, it is indicating that the 8-K is being used to file “written communications pursuant to Rule 425 under the Securities Act.” This rule governs communications made with respect to a business combination (e.g. a merger of two public companies). For example, if Company A agrees to purchase the common stock of Company B with shares of its own (Company A) stock, then any communication it transmits (a letter to employee shareholders of Company B, for instance) would be considered a prospectus (under Rule 165 under the Securities Act) and must be filed with the SEC. Form 8-K may be used for this purpose. Company A would file the shareholder letter as an exhibit to a Form 8-K and check the appropriate box on the cover.
The second box indicates that the Form 8-K contains “soliciting material pursuant to Rule 14a-12 under the Exchange Act.” Under the proxy rules, a person may not solicit proxies from a shareholder without providing a preliminary or definitive proxy statement prior to or concurrently with the solicitation. Rule 14a-12 is one of the most prevalent exceptions to these rules. Rule 14a-12 provides that solicitations are allowed as long as any written solicitation contains specified information and is filed with the SEC on the first day on which it is used. So, Form 8-K can be used to satisfy this requirement as well.
The third or fourth boxes would be checked if the Form 8-K contains “pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act” or “pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.” Under certain circumstances, a tender offer or may communicate with offerees prior to the commencement of a tender offer.
One requirement is that the communication be filed with the SEC, including on Form 8-K.
Sometimes, as in a reverse merger, a public company goes through a transformative transaction such that its prior public disclosure no longer reflect the company’s circumstances. In such a case, the company would prepare a Form 8-K that provides investors with comprehensive information about the company’s new business, risks, management, beneficial owners, etc.
The information typically provided is the information called for by SEC Form 10, which is the disclosure form used by companies that are required to register under the Exchange Act without a related public offering under the Securities Act of 1933.