Finally, New FAQs re Form 8-K // Cooley // Global Law Firm

By Cyndey Posner

Better later than never, I suppose. Sorely needed new FAQs on Item 5.02 of Form 8-K have been identified on the SEC's website as "coming soon to a theater near you" for several years. Just Wednesday, the SEC posted, and yesterday revised again, an entirely new set of FAQs related, not just to 5.02, but to a number of 8-K Items. Unfortunately, some of the guidance remains somewhat mystifying.

These interpretations replace the previous Form 8-K interps and FAQs, as well as the FAQs regarding the use of non-GAAP financial measures.

General Guidance

A triggering event that occurs within four business days before the company’s filing of a periodic report may be disclosed in that periodic report, except for the two items that must always be disclosed in Form 8-K, Item 4.01, Changes in Registrant’s Certifying Accountant, and Item 4.02, Non-Reliance on Previously Issued Financial Statements. The triggering events may be disclosed in Item 5 of Part II of Form 10-Q or Item 9B of Form 10-K, as applicable. However, if an amendment to a previously filed Forms 8-K is required, it must be filed on a Form 8-K/A. See also the fourth bullet under Item 2.02 below regarding the ability to rely on Item 2.02(b) of Form 8-K.
Triggering events apply to reporting companies and their subsidiaries, even if not expressly stated in the item. For example, entry by a subsidiary into a non-ordinary course definitive agreement that is material to the company is reportable under Item 1.01 and definitive obligations or off-balance sheet arrangements of the company or its subsidiaries that are material to the company triggers Item 2.03 disclosure.
General Instruction E to Form 8-K requires that a copy of the report be filed with each exchange where the company’s securities are listed. The term "exchange" as used in the instruction refers only to domestic exchanges.

Item 1.01 Entry into a Material Definitive Agreement

If an agreement becomes material to the company but was not material to the company when entered into, or amended, the agreement, the company need not file a Form 8-K under Item 1.01, but must, in any event, file the agreement as an exhibit to the periodic report relating to the reporting period in which the agreement became material under the requirements of Item 601 of Reg S-K.
The company must determine whether specific agreements, such as a placement agency or underwriting agreement, are material using established standards of materiality and with reference to Instruction 1 to Item 1.01. However, even if the agreement requires filing, the company may, as under Item 3.02, omit the identity of the underwriters from the disclosure in the Form 8-K to remain within the safe harbor of Rule 135c.
The company must include "a brief description of the material terms and conditions of the agreement or amendment that are material to the registrant." Incorporation by reference of the actual agreement would not satisfy this disclosure requirement. In some cases, the agreement may be so brief that it may make sense to disclose all the terms of the agreement into the body of the Form 8-K.
If an Item 1.01 Form 8-K filing requirement is triggered after the end of the quarter but before the Form 10-Q is due for that quarter, and the Item 1.01 Form 8-K does not include as an exhibit the agreement to which the Form 8-K relates, the company must file the agreement as an exhibit to that Form 10-Q, even though the event occurred after the end of the quarter. The disclosure requirement under Item 1.01 of Form 8-K does not alter the existing requirements for the filing of exhibits under Item 601 of Regulation S-K.

Item 1.02 Termination of a Material Definitive Agreement

Even if a material definitive agreement has a provision that requires advance notice to terminate and even if the company intends to negotiate with the counterparty and believes in good faith that the agreement will ultimately not be terminated, written advance notice to the company of termination will trigger the Form 8-K requirement. This result is required notwithstanding Instruction 1 to Item 1.02, which notes that no disclosure is required during negotiations or discussions regarding termination unless and until the agreement has been terminated, and Instruction 2, which provides that no disclosure is required if the company believes in good faith that the material definitive agreement has not been terminated. The Form 8-K is nevertheless triggered because Instruction 2 clarifies that, once notice of termination pursuant to the terms of the agreement has been received, the Form 8-K is required, notwithstanding the company’s continued efforts to negotiate a continuation of the contract.
A notice of nonrenewal will trigger an 8-K requirement where a material definitive agreement expires automatically on a specified date, but is continued for successive one-year terms unless one party sends a non-renewal notice during a specified period. Note that the triggering event is the sending of the notice, not the termination of the agreement months later. (However, automatic renewal in accordance with the terms of the agreement does not trigger the filing of an Item 1.01 Form 8-K.) In contrast, a termination on the agreement’s stated termination date does not trigger an Item 1.02 filing. For example, where an agreement expires on a specified date, but may be renewed for another term by sending a notice of renewal that is not rejected by the other party, the failure by both parties to send notices of renewal does not trigger an Item 1.02 filing. However, if one party sends a renewal notice that is not rejected, an Item 1.01 Form 8-K would be required upon expiration of the rejection deadline, not the sending of the renewal notice.

Item 2.01 Completion of Acquisition or Disposition of Assets

Item 2.01 of Form 8-K does not require disclosure of the execution of a contract to acquire or dispose of the assets, which would instead be covered by Item 1.01, if material. Disclosure under Item 2.01 is specifically required only when the acquisition or disposition is consummated. Even if Item 1.01 and Item 2.01 do not require disclosure, the company may voluntarily disclose under Item 8.01, if it deems the contract to be of importance to security holders. The financial statement requirement of Item 9.01 is triggered by Item 2.01, but is not triggered by Items 1.01 or 8.01.
The purchase of a minority stock interest in a business from an independent third party (which is accounted for under the cost method) would not require the filing of the financial statements of that business with any Form 8-K filed to report the transaction, so long as that minority position did not result in the reporting company’s control of the assets.
If a wholly owned subsidiary acquires a significant amount of assets from its parent, and both the subsidiary and the parent are reporting companies, the subsidiary would be required to file the Item 2.01 Form 8-K. The term "any person" found in Instruction 1 to Item 2.01 of Form 8-K refers to the company that has the obligation to file the report.
An indefinite closing of a portion of a company’s facilities, coupled with a write-down of its assets in excess of 10 percent, constitutes an "other disposition" for purposes of Instruction 2 to Item 2.01 of Form 8-K, and thus requires the filing of a Form 8-K report.
Paragraph (iii) of Instruction 1 to Item 2.01 of Form 8-K indicates that a Form 8-K filing is not required to report the redemption or acquisition of securities from the public, or the sale or other disposition of securities to the public, by the issuer of the securities or by a wholly owned subsidiary of that issuer. This instruction does not apply to the sale of the subsidiary’s equity, because the subsidiary would not be wholly owned after the transaction is completed.

Item 2.02 Results of Operations and Financial Condition

Item 2.02 contains a conditional exemption from its requirement to furnish a Form 8-K where earnings information is presented orally, telephonically, by webcast, by broadcast or by similar means, so long as, among other things, the company provides on its website any financial and other statistical information contained in the presentation, together with any information that would be required by Reg G. An audio file of the initial webcast would satisfy this condition, provided that: (1) the audio file contains all material financial and other statistical information included in the presentation that was not previously disclosed, and (2) investors can access the audio file and replay it through the company’s website. Alternatively, slides or a similar presentation posted on the website at the time of the presentation containing the required, previously undisclosed, material financial and other statistical information would satisfy the condition. In each case, the company must provide all previously undisclosed material financial and other statistical information, including information provided in connection with any questions and answers. Reg FD also may impose disclosure requirements in these circumstances.
If a company is unable to furnish its earnings release on a Form 8-K before its conference call or presentation and, therefore, cannot rely on the Item 2.02 exemption, the company must furnish the material, previously non-public, financial and other statistical information required to be furnished on Item 2.02 of Form 8-K as an exhibit to a Form 8-K and satisfy the other requirements of Item 2.02 of Form 8-K. A transcript of the portion of the conference call or slides or a similar presentation including this information will satisfy this requirement. In each case, all material, previously undisclosed financial and other statistical information, including that provided in connection with any questions and answers, must be provided. Reg FD also may impose disclosure requirements in these circumstances.
To satisfy the conditional exemption, the required information must appear on the company’s website at the time the oral presentation is made. In the event that information is disclosed unexpectedly in connection with a Q&A session and not provided in the presentation itself, the information must be posted on the company’s website promptly after it is disclosed. Any requirements of Reg FD also must be satisfied. A webcast of the oral presentation would be sufficient to meet this requirement. See also the first bullet under this Item 2.02 above.
Instead of filing a Form 8-K to satisfy the Item 2.02 conditional exemption, a company may instead file its earnings release as an exhibit to its Form 10-Q, if filed before the conference call takes place.
Failure to furnish to the SEC the Form 8-K required by Item 2.02 in a timely manner does not affect the company’s eligibility to use Form S-3. because the S-3 requirement relates to reports "required to be filed," and an Item 2.02 Form 8-K is furnished to the SEC. However, failure to comply with Item 2.02 of Form 8-K would be a violation of Section 13(a) of the Exchange Act and related rules.
Issuance of a press release containing previously non-public material information that the company would not meet its earnings estimates, along with an estimated range of expected adjusted earnings (a non-GAAP financial measure) would trigger the Item 2.02 Form 8-K requirement because it contained non-public material information regarding the results of operations for a completed fiscal period and would be subject to the requirements of Item 2.02 applicable to non-GAAP financial measures.
Item 2.02(b) provides that a Form 8-K is not required to report the disclosure of material nonpublic information that is disclosed orally, telephonically, by webcast, broadcast or similar means if, among other things, that presentation is complementary to and initially occurs within 48 hours following a related written announcement or release that has been furnished on an Item 2.02 Form 8-K. This 48-hour safe harbor is construed literally and is not the equivalent of two business or calendar days.

Item 2.03 Creation of a Direct Financial Obligation under an Off-Balance Sheet Arrangement of a Registrant

Instruction 2 to Item 2.03 states that if the company is not a party to the transaction creating the contingent obligation arising under the off-balance sheet arrangement, the 8-K must be filed within four business days after the earlier of (1) the fourth business day after the contingent obligation is created or arises, and (2) the day on which an executive officer becomes aware of the arrangement. Implicit in this requirement is that the company must maintain disclosure and internal controls and procedures so that the information becomes known to the company and disclosed on a timely basis. Instruction 2 to Item 2.03 provides for an additional four business days as a "grace" period given the nature of the requirement.
Whether an Item 2.03 Form 8-K must be filed when one long-term debt issuance is being replaced with another long-term debt issuance of the same principal amount and with similar terms requires a facts-and-circumstances determination as to whether the obligation is material. Whether the financial obligation is a refinancing on similar terms is one such fact; the amount of the obligation is another. Depending upon other facts and circumstances (including but not limited to factors such as current impact on covenants, liquidity and debt capacity and other debt requirements), a company may be able to conclude that a financial obligation in this situation is not material.

Item 2.04 Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement

If all conditions necessary to an event triggering acceleration or an increase in a direct financial obligation under an agreement have occurred, an 8-K may be required even if the counterparty has not declared, or provided notice of, a default. If, as is often the case, under the terms of the agreement, a declaration or notice is necessary prior to the increase or the acceleration of the obligation, then Item 2.04 is not triggered. If no declaration or notice is necessary and the increase or acceleration is triggered automatically on the occurrence of an event without declaration or notice and the consequences of the event are material to the company, then disclosure is required under Item 2.04.
A company has received a notice of default and brings the matter to arbitration, pursuant to its rights under the terms of the applicable loan agreement. Notwithstanding its good faith belief that no event of default has taken place and the fact that the arbitrator has yet to rule on the legitimacy of the event of default, the notice of default is a triggering event under Item 2.04. When the company files the Form 8-K, it may include a discussion of the basis for its belief that no event of default has occurred.
A voluntary redemption of convertible notes by a company is not a triggering event for purposes of Item 2.04 of Form 8-K. .

Item 2.05 Costs Associated with Exit or Disposal Activities

SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities, addresses only some of the costs associated with an exit activity. Other costs that may need to be disclosed pursuant to Item 2.05 are addressed by SFAS Nos. 87, 88, 106 and 112.
Consistent with SFAS 146, if a company is terminating employees as part of a plan to exit an activity, it need not file a Form 8-K disclosing the commitment to the plan until it has informed affected employees. See paragraphs 8, 20 and 21 of SFAS 146.
An Item 2.05 Form 8-K filing requirement is triggered when a company’s board or board committee, or the company’s officer(s) authorized to take such action if board action is not required, commits the company to a "plan of termination" that meets the description of such a plan in paragraph 8 of SFAS No. 146, under which material charges will be incurred under GAAP. The "plan of termination" need not fall within an "exit activity," as defined in SFAS No. 146, or otherwise constitute an "exit or disposal plan" (or part of one), to trigger an Item 2.05 Form 8-K filing requirement.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing

If a company with common stock traded on the OTC Bulletin Board applies to list on an exchange, an Item 3.01 Form 8-K filing requirement is not triggered because the OTCBB is not an automated inter-dealer quotation system of a registered national securities association or an exchange. Similarly, a Form 8-K filing would not be triggered by approval of the application.

Item 3.02 Unregistered Sales of Equity Securities

If a grant of stock options pursuant to an employee stock option plan does not constitute a "sale" or "offer to sell" under Securities Act Section 2(a)(3), the grant need not be reported under Item 3.02 of Form 8-K. (See, e.g., Millennium Pharmaceuticals, Inc. (May 21, 1998), employee opportunity to receive up to 25% of his or her performance-based option award in the form of share options of one or more of the other companies in the consolidated group).
If a company sells, in an unregistered transaction, shares of a class of equity securities that is not currently outstanding, the volume threshold under Item 3.02 of Form 8-K would necessarily be exceeded by the sale, and an Item 3.02 Form 8-K filing requirement would be triggered.
An Item 3.02 Form 8-K filing requirement is triggered when a company enters into an agreement enforceable against the company to issue unregistered equity securities to a third party in exchange for services and the applicable volume threshold is exceeded.
If an Exchange Act reporting, wholly owned subsidiary receives an additional equity investment from its Exchange Act reporting parent and the volume threshold under Item 3.02 of Form 8-K is exceeded, the subsidiary is required to file an Item 3.02 Form 8-K to report the additional equity investment, regardless of whether the subsidiary meets the conditions for the filing of abbreviated periodic reports under General Instruction H of Form 10-Q and General Instruction I of Form 10-K.
An Item 3.02 Form 8-K filing requirement is triggered upon an unregistered sale of warrants to purchase equity securities (or an unregistered sale of options outside a stock option plan), if the volume threshold under Item 3.02 is exceeded, or upon an unregistered sale of convertible notes (convertible into equity securities), if the volume threshold under Item 3.02 of the underlying equity security is exceeded. Pursuant to Item 701(e) of Reg S-K, the company must disclose the terms of, as applicable, the exercise of the warrants or the options or the conversion of the convertible notes in the Item 3.02 Form 8-K. If the Item 3.02 Form 8-K that discloses the initial sale of the warrants, options or convertible notes also discloses the maximum amount of the underlying securities that may be issued upon exercise or conversion, then a subsequent Item 3.02 Form 8-K filing requirement is not triggered upon the exercise or conversion.

Item 3.03 Material Modifications to Rights of Security Holders

The triggering event under Item 3.03 for a shareholder rights plan (which provides for the dividend of preferred share purchase rights upon certain change-in-control events) is not adoption by the board or filing of the certificate of designation with the state, but rather the issuance of the dividend. The rights of the holders of the registered common stock are not materially limited or qualified until the issuance of the preferred share purchase rights, which are not issued until the dividend is declared and the rights are distributed. The company must file an Item 1.01 Form 8-K when it enters into the shareholder rights plan if the plan constitutes a material definitive agreement not made in the ordinary course of business. (Although the Item is not mentioned in the FAQs, consider also Item 5.03, Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year may be implicated.)

Item 4.01 Changes in Registrant’s Certifying Accountant

Item 4.01 of Form 8-K requires a company to request the former accountant to furnish a letter stating whether the former accountant agrees with the company's statements concerning the reasons for the change. Where the former accountant declines to provide such a letter, the company should indicate that fact in the Form 8-K.
The company must file the report for this event on a Form 8-K and must file any required amendments to the report on a Form 8-K/A. It is not sufficient to report the event in a periodic report.

Item 4.02 Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review

If a company has taken appropriate action to prevent reliance on previously issued financial statements because of an error in the financial statements and has also filed a Form 8-K under Item 4.02(a), the company does not need to file a second Form 8-K to indicate that the auditor also has concluded that future reliance should not be placed on its audit report, unless the auditor’s conclusion relates to an error or matter different from that which triggered the company's Item 4.02(a) filing.
The Item 4.02 requirement does not apply to pro forma financial information. If an error is detected in pro forma financial information, an amendment to the form containing the information may be required to correct the error.
A decision that the company's past financial statements should no longer be relied upon must be reported on a Form 8-K and any required amendments must be on a Form 8-K/A. It is not sufficient to report the event in a periodic report.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

With respect to any resignation, retirement or refusal to stand for re-election reportable under Item 5.02(b), the Form 8-K reporting obligation is triggered by a notice of a decision to resign, retire or refuse to stand for re-election provided by the director, whether or not the notice is written, and regardless of whether the resignation, retirement or refusal to stand for re-election is conditional or subject to acceptance. The disclosure must specify the effective date of the resignation or retirement. In the case of a refusal to stand for re-election, the company must disclose when the election in question will occur, for example, at the next annual meeting. No disclosure is required solely by reason of Item 5.02(b) of discussions or consideration of resignation, retirement or refusal to stand for re-election. Whether communications represent discussion or consideration, on the one hand, or notice of a decision, on the other hand, is a facts-and-circumstances determination. A company should ensure that it has appropriate disclosure controls and procedures in place – for example, a board policy that all directors must provide any such notice directly to the corporate secretary –to determine when a notice of resignation, retirement or refusal has been communicated to the company.
Under Instruction 4 to Item 5.02, the term "named executive officer" refers to those executive officers for whom disclosure under Item 402(c) of Reg S-K (the Summary Comp Table) was required in the most recent SEC filing. A Form 8-K is triggered under Item 5.02(b) when one of those officers retires, resigns or is terminated from the position that the executive officer is listed as holding in the most recent filing including Item 402(c ) disclosure. Disclosure on Form 8-K is not triggered just because the person is no longer required to be included in the Summary Comp Table because of the level of his or her total compensation.
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, even if the person retains the same title.
A decision by a company not to nominate a director for re-election at its next annual meeting does not require a Form 8-K because that situation is not covered under the phrase "is removed." However, if, upon being advised that the company does not intend to nominate him or her for re-election, the director then resigns, a Form 8-K would be required under Item 5.02. If the director tells the company that he or she refuses to stand for re-election, a Form 8-K is required because the director has communicated a "refusal to stand for re-election," whether or not in response to an offer by the company to be nominated.
Item 5.02(a) of Form 8-K requires companies to describe the circumstances of a director’s resignation when he or she resigned "because of a disagreement with the registrant… on any matter related to the registrant’s operations, policies or practices." A disagreement with the process chosen by the Chairman and other board members to address a director’s alleged violation of a company’s policy regarding unauthorized public disclosures and the board’s related decision to ask the director to resign is a disagreement on matters "related to the registrant’s operations, policies or practices." See In the Matter of Hewlett Packard Company, Release 34-55801 (May 23, 2007).
When a principal financial officer temporarily turns his or her duties over to another person, a company must file a Form 8-K under Item 5.02(b) to report that the original principal financial officer has temporarily stepped down and under Item 5.02(c) to report that the replacement principal financial officer has been appointed. If the original principal financial officer returns to the position, then the company must file a Form 8-K under Item 5.02(b) to report the departure of the temporary principal financial officer and under Item 5.02(c) to report the "re-appointment" of the original principal financial officer.
A notice by a director who is designated by an issuer’s majority shareholder that he will resign if the majority shareholder sells its entire holdings of issuer stock will trigger an obligation to file an Item 5.02(b) Form 8-K. The Form 8-K should state clearly the nature of the contingency and the extent to which the resigning director can control occurrence of the contingency.
Item 5.02(b) of Form 8-K does not require a company to report the death of a director or listed officer.
Foreign private issuers that satisfy the Item 402 of Reg S-K disclosure requirement by providing compensation disclosure in accordance with Item 402(a)(1) should refer to Instruction 4 to Item 5.02 to determine who is a "named executive officer." The NEOs will be those individuals for whom disclosure was provided in the last Securities Act or Exchange Act filing pursuant to Item 6.B or 6.E.2 of Form 20-F.
If, pursuant to a contractual provision in an NEO’s employment contract or otherwise, the company must provide a specified number of days' notice of termination of employment, an Item 5.02(b) Form 8-K filing requirement is triggered on the date the company notifies the NEO of his or her termination, not the date the NEO’s employment actually ends.
If a company appoints a new CEO, it may delay disclosure until it makes a public announcement of the event under the Instruction to Item 5.02(c). Disclosure under 5.02 (e) (new or materially modified compensatory plan or agreement) could also then be postponed to the time of public announcement consistent with Item 5.02(c). If the new CEO were also simultaneously appointed to the board of directors, the company could, in these circumstances, also postpone the disclosure under paragraph (d) of Item 5.02 (appointment of a new director). If, however, the new CEO is replacing another CEO who retired, resigned or was terminated from that position, an Item 5.02(b) Form 8-K filing obligation is triggered by the former CEO's notice of a decision to retire or resign or by the notice of termination, whether or not in writing; it may not be delayed until the filing of the Form 5.02(c) Form 8-K.
Both the appointment of a director to the board and his committee assignment were disclosed under Item 5.02(d) of Form 8-K. If the board later rotates committee assignments, no new Form 8-K or amendment to the Item 5.02(d) Form 8-K is required by Instruction 2 to Item 5.02, provided that the change in committee assignment was not contemplated at the time of the director’s initial election to the board and appointment to the committee.
The automatic extension, pursuant to its terms, of an employment agreement with an NEO (i.e., neither party gives notice that it does not wish to renew the agreement), does not trigger an Item 5.02(e) Form 8-K filing requirement.
If a new principal accounting officer is appointed, the company must make all of the disclosures required by Item 5.02(c)(2) of Form 8-K even if the company does not consider its principal accounting officer to be an executive officer for purposes of Items 401 or 404 of Reg S-K and did not include him or her in the list of executives in its Form 10-K.
If a director is elected to the board of directors other than by a vote of security holders at a meeting, but the director’s term will begin on a later date, the Item 5.02(d) reporting requirement is triggered as of the date of the director’s election to the board. The Item 5.02(d) Form 8-K should disclose the date on which the director’s term begins.
Adoption by a company's board of directors of a material equity compensation plan in which NEOs are eligible to participate requires disclosure pursuant to Item 5.02(e) of Form 8-K. However, where the plan is adopted subject to shareholder approval, the obligation to file a Form 8-K pursuant to Item 5.02(e) is triggered upon receipt of shareholder approval of the plan. The same result would obtain with regard to an amendment adopted subject to shareholder approval.
Adoption by the board of directors of a material cash bonus plan triggers an Item 5.02 8-K requirement (unless adoption is subject to shareholder approval) even if no specific performance criteria, performance goals or bonus opportunities have been communicated to plan participants. After the adoption of the plan has been disclosed in an Item 5.02(e) Form 8-K, if the board of directors then sets specific performance goals and business criteria for the NEOs during the performance period, in reliance on Instruction 2 to Item 5.02(e), no Item 5.02(e) Form 8-K is triggered to report this action so long as the specific performance goals and business criteria are materially consistent with the previously disclosed terms of the plan (such as EBITDA, return on equity or other applicable measure). (Note that, in the absence of this guidance, the general consensus view among commentators, to the extent there was one, seemed to be that an 8-K would be required when the goals were set.)
A company is not required to provide disclosure pursuant to Item 5.02(e) of target levels with respect to specific quantitative or qualitative performance related-factors, or any other factors or criteria involving confidential trade secrets or confidential commercial or financial information, the disclosure of which would result in competitive harm to the company. This position is consistent with the treatment of similar information under Instruction 3 to Item 402(b) of Reg S-K and Instruction 2 to Item 402(e)(1) of Reg S-K. (Query whether the staff will be taking the tough positions on this issue taken in connection with proxy review.)
A company pays out a material cash award pursuant to a cash bonus plan for which disclosure previously was filed consistent with the guidance above. Payment of the cash award upon determining that the performance criteria have been satisfied would not trigger a filing because, under Instruction 2 to Item 5.02(e), a Form 8-K is not required where the payment was materially consistent with the previously disclosed terms of the plan. However, if the company exercised discretion to pay the bonus even though the specified performance criteria were not satisfied, a Form 8-K reporting the payment would be required under Item 5.02(e) because the payment was not materially consistent with the previously disclosed terms of the plan, even if the plan provided for the exercise of such discretion. (Compare the circumstance below.)
Where a previously disclosed employment agreement with the principal executive officer provides for a cash bonus in an amount to determined in the discretion of the compensation committee, no Item 5.02(e) Form 8-K would be required to report the discretionary bonus amount when the committee makes an ad hoc determination of the amount. Disclosure regarding material information about the bonus should be included in the company’s CD&A and related disclosures under Item 402 of Reg S-K.
A termination of an executive compensation plan requires Item 5.02(e) disclosure if it constitutes a material amendment or modification of the plan.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

An Item 5.03 Form 8-K is not required for a mere restatement of the articles of incorporation (e.g., a restatement that merely consolidates previous amendments without any substantive changes to the articles of incorporation). However, the company should refile its complete articles of incorporation, if restated, in its next periodic report for ease of reference by investors.
Release No. 34-26589, which significantly amended Rule 15d-10, states that "[a] change from a fiscal year ending as of the last day of the month to a 52-53 week fiscal year commencing within seven days of the month end (or from a 52-53 week to a month end) is not deemed a change in fiscal year for purposes of reporting subject to Rule 13a-10 or 15d-10 if the new fiscal year commences with the end of the old fiscal year. In such cases, a transition report would not be required. Either the old or new fiscal year could, therefore, be as short as 359 days, or as long as 371 days (372 in a leap year)." While a transition report would not be required in such a situation, an Item 5.03(b) Form 8-K would have to be filed to report the change in fiscal year-end.

Item 9.01 Financial Statements and Exhibits

The automatic 71-day extension of time in Item 9.01 of Form 8-K is available only with respect to acquisitions, not dispositions. Corp Fin's Office of the Chief Accountant will continue to address questions regarding dispositions on a case-by-case basis.
The Instruction to Item 9.01 of Form 8-K addresses the status of transactions in securities registered under the Securities Act and Rule 144 sales during the pendency of an extension, but does not address the status of such sales after a denial of a request for waiver of financial statements. This question will be dealt with on a case-by-case basis.
Item 17(b)(7) of Form S-4 states generally that the financial statements of acquired companies that were not previously Exchange Act reporting companies need be audited only to the extent practicable, unless the Form S-4 prospectus is to be used for resales by any person deemed an underwriter within the meaning of Rule 145(c), in which case such financial statements must be audited. A resale pursuant to Rule 145(d), in lieu of the Form S-4 prospectus, would also require the financial statements to be audited. Rule 145(d) is not included in the Instruction to Item 9.01 of Form 8-K regarding sales pursuant to Rule 144 during the 71-day extension period for filing financial statements. As the audited financial statements for the acquired company would be required pursuant to Item 9.01 of Form 8-K, a resale pursuant to Rule 145(d) would not be permitted until they are filed. (Keep in mind that the impact of this interpretation is limited given the recent cahnges to Rule 145.)
Item 20.D. of Industry Guide 5 requires, inter alia, an undertaking to file every three months post-effective amendments containing financial statements of acquired properties. Even if the automatic 71-day extension of time to file the financial statements for an acquired property is applicable to a Form 8-K, this extension does not apply to the Guide 5 post-effective amendment. Accordingly, the post-effective amendment must be filed when required by Item 20 of Guide 5, and must contain the required financial statements. This is the same position as that taken before the Form 8-K extensions were made automatic.
During the pendency of a 71-day extension applicable to a Form 8-K, Securities Act offerings may not be made except as provided in the Instruction to Item 9.01 of Form 8-K. The Division staff has been asked whether this provision applies to real estate limited partnership offerings, thus prohibiting sales from being made until financial statements for properties acquired during the offering period have been filed (even when the quarterly post-effective amendment is not yet due). The amendment to Form 8-K was not intended to change the procedure established in Item 20.D. of Guide 5. Accordingly, when properties are acquired during the offering period, the company may continue sales activities notwithstanding the pendency of an 8-K extension, so long as the quarterly post-effective amendments containing the financial statements are filed when required.

Finally, New FAQs re Form 8-K

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