• SEC Adopts Amendments to Form 8-K
  • March 15, 2004 | Author: John M. Borkholder
  • Law Firm: Orrick, Herrington & Sutcliffe LLP - San Francisco Office
  • Yesterday, the SEC adopted amendments to Form 8-K that will add ten new disclosure items to Form 8-K, including two items transferred, in part, from the periodic reports. The new rules will also replace the current five business and 15 calendar day Form 8-K deadlines with a new four business day deadline. The amendments will become effective on August 23, 2004.

    The new disclosure items include:

    • entry into a material non-ordinary course agreement;
    • termination of a material non-ordinary course agreement;
    • creation of a material direct financial obligation or a material obligation under an off-balance sheet arrangement;
    • triggering events that accelerate or increase a material direct financial obligation or a material obligation under an off-balance sheet arrangement;
    • material costs associated with exit or disposal activities;
    • material impairments;
    • notice of delisting or failure to satisfy a continued listing rule or standard;
    • transfer of listing;
    • non-reliance on previously issued financial statements or a related audit report or completed interim review (restatements);
    • unregistered sales of equity securities; and
    • material modifications to rights of security holders.

    In addition, the amendments will require expanded disclosure regarding the election, appointment or departure of directors and principal officers, amendments to articles of incorporation or bylaws, and a change in fiscal year.

    The amendments will also create a limited safe harbor under Exchange Act Section 10(b) and Rule 10b-5 for failure to file timely seven of the new items on Form 8-K. The safe harbor will not apply to, or impact, any other duty to disclose a company may have and extends only until the due date of the company's periodic report for the relevant period.

    A detailed SEC release, including the text of these amendments, is not yet available. You can find a copy of the SEC's announcement at www.sec.gov/news/press/2004-31.htm.