Current Reports on Form 8-K – SEC Disclosures and Requirements

Under applicable SEC rules for periodic reporting, an SEC reporting issuer must  generally report certain current events on Form 8-K within four business days after a triggering event has occurred. Current Reports on Form 8-K provide investors with  information to enable them to make informed investment decisions. Form 8-K SEC Disclosure and Requirements include that the issuer provide  “material” information. This means that there is a substantial likelihood that a reasonable investor would consider the information important in making an investment decision. 

The table below lists the line item disclosures required in Form 8-K and certain events that trigger each separate disclosure item. 

Item 1.01 Entry into a Material Definitive Agreement 

Under this Item, the SEC reporting issuer must disclose when it enters into (1) any material definitive agreement that is not made in the ordinary course of business or (2) any material amendment to any such material definitive agreement.

A material definitive agreement is defined as an agreement that provides for (1) obligations that are material to and enforceable against the issuer or (2) rights that are material to the issuer and enforceable by the issuer against one or more parties to the agreement.

Examples of types of agreements that the issuer could be required to disclose under this Item include: 

• Agreements to enter into a merger, sale of a business or acquisition of a business. 
• Credit facilities. 
• Agreements on which the issuer’s business is dependent, such as major customer or supply agreements. 
• Material leases of property or license agreements. 
• Employee benefit plans and any amendments to those plans. 

Item 1.02 Termination of a Material Definitive Agreement 

Under this Item, the SEC reporting issuer must disclose when one of its material definitive agreements made other than in the ordinary course of business is terminated and the termination is material to the company.

This does not include: 

• When an agreement expires by its terms on a stated termination date. 
• When all of the parties to an agreement complete their obligations under that agreement. 

Item 1.03 Bankruptcy or Receivership 

Under this Item, the SEC reporting issuer must disclose if it has become the subject of a bankruptcy or receivership court filing. 

Item 1.04 Mine Safety 

Under this Item, the SEC reporting issuer must disclose any imminent danger orders or notices from the Mine Safety and Health Administration relating to violations of mandatory health or safety standards under Section 104(e) of the Federal Mine Safety and Health Act of 1977. 

Item 1.05 Material Cybersecurity Incidents 

Under this Item, the SEC reporting issuer must disclose information about the occurrence of a “cybersecurity incident” that “is determined to be material.”

Examples of events that the issuer could be required to disclose under this Item include: 

• An unauthorized incident that compromised the confidentiality, integrity, or availability of an information asset (data, system, or network), or violated the issuer’s security policies or procedures. This could stem from the accidental exposure of data or from a deliberate attack to steal or alter data. 
• An unauthorized incident that caused degradation, interruption, loss of control, damage to, or loss of operational technology systems. 
• An incident in which an unauthorized party accessed, or a party exceeded authorized access, and altered, or stole sensitive business information, personally identifiable information, intellectual property, or other information that has resulted, or may result, in a loss or liability for the issuer. 
• An incident in which a malicious actor has offered to sell or has threatened to publicly disclose sensitive company data. 
• An incident in which a malicious actor has demanded payment to restore company data that was stolen or altered. 

Item 2.01 Completion of Acquisition or Disposition of Assets

Under this Item, the SEC reporting issuer must disclose if it (or any of its majority-owned subsidiaries) acquires or disposes of a significant amount of assets other than in the ordinary course of business. A description of the terms of the transaction must also be disclosed.

Item 2.02 Results of Operations and Financial Condition

Under this Item, the SEC reporting issuer must disclose its public announcements or releases of material nonpublic information about its results of operations or financial condition. The issuer discloses its quarterly and annual earnings releases under this Item.

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

Under this Item, the SEC reporting issuer must disclose if it has incurred a “direct financial obligation” that is material or becomes liable for a material obligation arising from an off-balance sheet arrangement.

A direct financial obligation is defined as a long-term debt obligation, capital lease obligation, operating lease obligation, or short-term debt obligation other than in the ordinary course of business.

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

Under this Item, the SEC reporting issuer must disclose any defaults on loans or other events that trigger the acceleration or increase of a financial obligation if the consequences of the event are material to the issuer. For example, if an issuer defaults on a loan, its creditors typically have the right to demand immediate payment of the entire amount owed.

Item 2.05 Costs Associated with Exit or Disposal Activities

Under this Item, the SEC reporting issuer must disclose if it expects to incur material write-off or restructuring charges under GAAP because its board of directors, a board committee or an authorized officer (or officers) commits the issuer to an exit or disposal plan or otherwise disposes of a long-lived asset or terminates employees under a plan of termination under ASC 420 (Exit or Disposal Cost Obligations), Subtopic 10, Section 25. 

Item 2.06 Material Impairments

Under this Item, the SEC reporting issuer must disclose certain material impairments. Material impairments may occur when an issuer significantly lowers its estimate of the value of certain assets, such as the value of its brand or of a business it has acquired. The impairment impacts the financial statements as a decrease in assets on the balance sheet and as an expense on the income statement.

However, If the issuer determines the impairment when routinely preparing its financial statements for its periodic report, the issuer may make the disclosure in the issuer’s Form 10-Q or Form 10-K for that period rather than in an 8-K.

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

Under this Item, the SEC reporting issuer must disclose if any of the following occurs:

• Receipt of notice from NASDAQ or NYSE that (1) the issuer does not satisfy a rule or standard for continued listing of its common stock or (2) the exchange has applied to the SEC to delist the issuer’s common stock.
• The issuer notifies the NASDAQ or NYSE that it is aware of any material noncompliance with a rule or standard for continued listing on the exchange.
• The NASDAQ or NYSE issues a public reprimand letter or similar communication stating that the issuer has violated a rule or standard for continued listing on the exchange.
• The issuer takes action to withdraw or terminate its listing of the issuer’s common stock on the NASDAQ or NYSE.

The issuer must disclose any notices from the Nasdaq or NYSE under this Item even if the issuer is granted a grace period or other extension period to cure the deficiency or non-compliance.

Item 3.02 Unregistered Sales of Equity Securities

Under this Item, the SEC reporting issuer must disclose if it sells any equity securities in a private placement or other transaction that is not registered under the Securities Act of 1933, as amended.

Item 3.03 Material Modification to Rights of Security Holders

Under this Item, the SEC reporting issuer must disclose any material changes to any instruments that define the rights of shareholders.

Examples of events that would trigger disclosure under this Item include:

• Amending the articles of incorporation or by-laws of the issuer to change the rights of common stockholders.
• Issuing preferred stock that receives dividends or receives some other preference before common stockholders.
• Entering into any agreement that places any working capital restrictions or other limitations on the issuer’s ability to pay dividends.

Item 4.01 Changes in Registrant’s Certifying Accountant

Under this Item, the SEC reporting issuer must disclose (1) if it terminates its auditor, (2) if the auditor resigns or declines to stand for re-appointment, and (3) if the issuer hires a new auditor.

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

Under this Item, the SEC reporting issuer must disclose if (1) it believes that its previously issued financial statements should not be relied upon because of an error in the statements or (2) if the auditor believes that its previously issued audit reports or interim reviews on financial statements should not be relied upon.

Item 5.01 Changes in Control of Registrant

Under this Item, the SEC reporting issuer must disclose if a change in control in voting control of the issuer has occurred, including who acquired control and the percentage of voting securities that they beneficially own, as well as any arrangements between the old and new control groups regarding the election of directors or other matters.

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

Under this Item, the SEC reporting issuer must disclose if any of the following occurs:

• A director is removed for or without cause or resigns or refuses to stand for re-election.
• An executive officer retires, resigns or is terminated.

If a director is removed for cause, the issuer must briefly describe the circumstances of the removal. If the director provides a letter regarding his or her resignation, refusal or removal, the issuer should file the resignation letter as an exhibit to the 8-K.

The issuer must also disclose the appointment of a new director or executive officer as well as their compensation arrangements, if any.

Item 5.03 Amendments to Certificate of Incorporation or By-laws; Change in Fiscal Year

Under this Item, the SEC reporting issuer must disclose any amendments to its articles of incorporation or bylaws, or changes to its fiscal year, unless the issuer previously disclosed the foregoing in a proxy or information statement.

Item 5.04 Temporary Suspension of Trading Under Registrant’s Employee Benefit Plans

Under this Item, the SEC reporting issuer must disclose (1) when it receives any notice under Section 101(i)(2)(E) of ERISA of any blackout period or other suspension of trading under any of the issuer’s employee benefit plans or (if it has not received any such notice) (2) when it sends out a timely notice under Regulation BTR to its directors and officers regarding the blackout period or other suspension of trading.

Item 5.05 Amendments to the Registrant’s Code of Ethics or Waiver of a Provision of the Code of Ethics

Under this Item, the SEC reporting issuer must disclose when it makes changes to its code of ethics applicable to its chief executive officer, chief financial officer, chief accounting officer or controller, or other persons performing similar functions.

Item 5.07 Submission of Matters to a Vote of Securityholders

Under this Item, the SEC reporting issuer must disclose the results of any matter submitted to a vote of its stockholders.

Voting results must be reported within four business days after the vote is held. If final voting results are not available within that time period, the issuer must file a Form 8-K disclosing preliminary voting results and file an amended Form 8-K with the final results within four business days after they become available.

Item 7.01 Regulation FD Disclosure

Under this Item, the SEC reporting issuer must disclose any information that it elects to disclose on Form 8-K in accordance with Regulation FD.  Regulation FD (“fair disclosure”) generally requires that issuers provide material information to the public at the same time as they provide it to others.

Item 8.01 Other Events

Under this Item, the SEC reporting issuer can choose to disclose any events or other information that is not otherwise required to be reported under any other item of Form 8-K, which it believes its shareholders would find important.

Item 9.01 Financial Statements and Exhibits

This Item requires an SEC reporting issuer to file certain financial statements and list any exhibits that it has filed as part of the Current Report on Form 8-K.

To speak with a Securities Attorney, please contact Brenda Hamilton at 200 E Palmetto Rd, Suite 103, Boca Raton, Florida, (561) 416-8956, or by email at [email protected]. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates | Securities Attorneys
Brenda Hamilton, Securities Attorney
200 E Palmetto Rd, Suite 103
Boca Raton, Florida 33432
Telephone: (561) 416-8956
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