Reminder: New Form 8-K Rules Effective Today

By: Cydney Posner

Just a quick reminder that the new Form 8-K rules became effective today. A link to the full release is attached, but a very brief summary of the changes are:

• Compensation contracts/arrangements are no longer subject to Items 1.01 or 1.02 of Form 8-K, but disclosure will be made under a newly formulated Item 5.02.
• Item 5.02 now requires disclosure regarding the retirement, resignation, termination or removal of any director or any NEO (not just the PEO, President, PFO, principal accounting officer and principal operating officer).
• NEO status for Item 5.02 purposes is determined by reference to the NEOs named in the most recent SEC filing that required Regulation S-K, Item 402(c) executive compensation disclosure (proxy statement, registration statement, Form 10-K).
• In connection with the appointment of a director (other than at an annual meeting) or the appointment of a new PEO, President, PFO, principal accounting officer or principal operating officer - must disclose a brief description of any material plan, contract or arrangement to which the director or NEO is a party or participates in (including any material amendment of any plan, contract or arrangement). Disclosure is no longer limited to employment agreements.
• New Item 5.02(e) requires a brief description of the terms and conditions and amounts payable under any new material compensatory plan, contract or arrangement to which the NEO is a party or participates in (including material amendments, material grants and material modifications of grants, unless materially consistent with the previously disclosed terms of such plan, contract or arrangement and disclosure is made in registrant's next SEC filing requiring executive compensation information under Item 402). This current disclosure is required even if not entered into in connection with the appointment of the NEO.
• Other than in connection with appointment of a director (see above), current disclosure is no longer required for entry into compensatory arrangements with directors. Compensatory arrangements with directors must be filed, though, with the periodic report for the period during which they were entered into.
• New Item 5.02 (f) requires disclosure of salary and bonus for the most recent fiscal year that was not available at the latest practicable date in connection with the company's executive compensation disclosure in its proxy statement required by Item 402, including a new "total compensation" recalculation to reflect the new information.
• Failure to timely file under Item 5.02(e) will not result in loss of Form S-3 eligibility; failure to timely file under other sections of Item 5.02 will result in the loss of S-3 eligibility.
• Filing period remains at 4 business days.

We are issuing our revised "Form 8-K Triggering Events" brochure shortly.

Click here for the release.

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