SEC Technical Corrections

By: Cydney Posner

The SEC has just posted a new release with technical corrections to Form 8-K and other forms.  These corrections include:

• There was an inconsistency between the regulatory text and the release discussion in the 8-K Release with regard to disclosures under Item 2.01 of Form 8-K, Completion of Acquisition or Disposition of Assets. The regulatory text has been revised to clarify that disclosure of the identity of the source of funding need be made only when a material relationship exists between the company and the source of funding.
• These amendments add a fourth checkbox to the cover of Form 8-K to allow a company to satisfy the disclosure requirements of Rule 13e-4(c), the Reg M-A provision for issuer tender offers, by including that disclosure in a Form 8-K. Also, to clarify that a Form 8-K report that satisfies the filing requirements of Rule 14a-12(b) must contain all of the information required by Rule 14a-12, the SEC revised the reference in the newly adopted second checkbox to remove the paragraph (b) designation.
• Paragraphs (a)(5)(1) and (2) of Item 5.01 of Form 8 K, Changes in Control of Registrant, have been redesignated as paragraphs (a)(5)(i) and (ii).
• Item 5.05(c) (formerly Item 10) of Form 8-K, Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics, has been clarified to state that a company disclosing an amendment to, or waiver from, its code of ethics on its website must do so within four business days, rather than five business days, after the date on which the code is amended or the waiver is granted to comply with paragraph (c) of the item. This change is designed to parallel the general Form 8-K four-business day filing deadline.
• In Item 1.03 of Form 8-K, Bankruptcy or Receivership, the reference to the Bankruptcy Act has been changed to refer instead to the U.S. Bankruptcy Code.
• In the instructions to Forms S-2 and S-3, references to Section 12 of the Exchange Act have been corrected to refer to Section 13.
• The requirement in paragraph (b) to Item 5 of Form 10-Q and Item 5 of Form 10-QSB, which requires companies to disclose information regarding changes to the procedures by which security holders may recommend nominees to the company's board of directors was inadvertently deleted in a subsequent release. These amendments clarify that paragraph (b) is restored.
• Item 5(a) of Form 10-K is corrected to delete regulatory text permitting the exclusion of sales made under Regulation S.

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