• Covers entry into a material definitive agreement not made in the ordinary course of business
• Covers material amendments of material agreements
• Refers to S-K 601(b)(10) to determine
  types of agreements which are covered
• Includes business combination agreements /
  extraordinary corporate transactions
• Covers executive compensation plans that meet
  S-K 601(b)(10) standard
• No quantitative test for material;
  compare "10% tests" used for Item 2.01
• Specified disclosures must be included in 8-K
• Proposal that the agreement itself be filed as an 8-K exhibit was eliminated
  Instead, continues existing practice per S-K
  Item 601
• Can now check an 8-K box to satisfy M&A announcement requirements
• If filed late, covered by limited safe harbor
• Final Release commentary
• SEC FAQs
• Precedent examples

• Covers termination of a material definitive agreement not made in the ordinary course of business
• Specified disclosures must be included in 8-K
• No disclosure required during any negotiation about termination, or while company believes, in good faith, that agreement hasn't been terminated
• If filed late, covered by limited safe harbor
• Final Release commentary
• SEC FAQs
• Precedent examples

• Carry-over of former Form 8-K Item 3
  with non-substantive text changes

• Precedent examples

• Carry-over of former Form 8-K Item 2; some technical changes, but no substantive differences
• Item 1.03
• Same trigger: assets whose value or cost exceeds 10% of total assets
• Can apply to closing of transactions previously reported under Item 1.01
• Final Release commentary

• Precedent examples

• Triggered by quarterly or annual earnings release
• Must include release as an exhibit
• Release of additional information can require an additional 8-K filing; Exception for complementary conference call / webcast
• Furnished not filed, for liability purposes
• Added to Form 8-K as old Item 12; redesignated as
  Item 2.02 with no substantive change

• Re: use of non-GAAP financial measures:
  Regulation G applies to earnings release itself
  8-K must also address purposes / reasons for use of
  non-GAAP measure
• Item 2.02 overlaps with 8-K Item 7.01 - Reg FD 
  if timely filed, same 8-K can cover Item 2.02 and Item 7.01 requirements
  Note: text of 8-K should indicate that it being provided under Item 2.02, or under Items 2.02 and 7.01, as the case may be
  Regulation FD

• Final release 33-8176 1.22.03

• Precedent examples

• Covers material direct financial obligations and
  direct or contingent material obligations under an
  off-balance sheet arrangement
• Specified disclosures must be included in 8-K
• File relevant documents; specified disclosures required
• No quantitative test for material
• Exception made for obligations which are securities subject to an effective registration statement
• Guaranty accounting - FIN 45
  Compare MD&A -- Off-balance sheet arrangements
• Can be triggered by a drawdown on a credit line
• Credit line itself could be reportable per Item 1.01
• If filed late, covered by limited safe harbor

• Release commentary
• SEC FAQs
• Precedent examples

• Covers specified triggering events
  including events of default / acceleration
• Specified disclosures must be included in 8-K
  Item 2.04
• Not triggered while still negotiating waivers or amendments
• Triggered by receipt of formal third party notice
  of event
• Replaces 10-Q Part II, Item 3: "Defaults upon senior securities"
• If filed late, covered by limited safe harbor

• Release commentary
• SEC FAQs
• Precedent examples

• Triggered when board or officers definitively commit to a exit or asset disposal plan
• Specified disclosures required
  Item 2.05
  Accounting: Restructuring / impairment charges
• If filed late, covered by limited safe harbor

• Release commentary
• SEC FAQs
• Precedent examples

• Including impairment of securities or goodwill
• Triggered when board or officers conclude that a GAAP charge is required
• Specified disclosures required
  Item 2.06
• If filed late, covered by limited safe harbor

• Release commentary
• Precedent examples

• Covers failure to satisfy listing standards / delisting / transfer of listing
• Triggered by notice from exchange or other SRO NASDAQ
• Covers receipt of a public reprimand letter
• Covers company notifying SRO that it is aware of
  noncompliance with a listing requirement
  Item 3.01
• File notice from SRO / specified disclosures required

• Release commentary

• Precedent examples

• Requires disclosures specified by S-K Item 701(a),
• (c), (d), and (e) but only if cumulative sales since last report exceed 1% of the outstanding securities of that class (5% for small business issuers) Item 3.02
• Form 10-Q Item 2(c) and Form 10-K item 5(a) continue to apply but only as a backstop to capture sales that are less than 1% threshold for Form 8-K reporting

• Release commentary

• Precedent examples

• Specified disclosures required
  Item 3.03
• Replaced Form 10-Q Items 2(a) and (b)

• Release commentary

• Precedent examples

    Changes in Registrant's Certifying Accountant

• Carry-over of former Form 8-K Item 4
  Item 4.01

• Release commentary

• Precedent examples

    Non-reliance on Previously Issued Financial
    Statements or a Related Audit Report or
    Completed Interim Review

• Triggered when audit committee, board or officers conclude that previously issued financials shouldn't be relied upon
• Also triggered if advised by or notified by auditor that previously issued audit report shouldn't be relied upon
• Specified disclosures required
  Item 4.02
• Must file notice from auditors together with specified disclosures
• Must file second 8-K on whether auditors agree with disclosure in first 8-K
• Note: potential for noisy withdrawal by auditors
• If filed late, 4.02(a) may be covered by limited safe harbor

• Release commentary
• SEC FAQs
• Financial restatements

• Carry-over of former Form 8-K Item 1;
  some technical changes, but no substantive differences
• Item 5.01

• Release commentary

• Precedent examples

    Departure/Election/Appointment

• Expands former Item 6 - Resignation of directors

Principal officer includes:

a. Director resigns: disagreement or removed
for cause;

b. Director resigns: no disagreement;

c. New "principal officer" is appointed

d. New director is appointed other than at an annual meeting:

• Specified disclosures required
• Item 5.03
• Expands former Item 8 - change in fiscal year

• SEC FAQs

• Release commentary

• Precedent examples

   Temporary Suspension of Trading Under Registrant's
   Employee Benefit Plans

• Applies when ERISA plans (401k plans) experience a
  blackout period
• Added to Form 8-K in Jan 2003 as Item 11
  Redesignated as Item 5.04 with no substantive change
• Form 8-K must be filed by the fourth business day following receipt of ERISA notice or same day that notice of blackout period is sent to directors / executive officers
  see Final release commentary
• Regulation BTR
• Final release 34-47225 1.22.03
  Original adoption as Item 11 of old Form 8-K

Amendments to the Registrant's Code of Ehtics, or
Waiver of a Provision of the Code of Ethics

• Added to Form 8-K in Jan 2003 as Item 10
• Redesignated as Item 5.05 with no substantive change
• Form 8-K must be filed following a change or waiver
  alternatively, can be posted to Company's website
• Applies only after code of ethics is first disclosed in annual report

• Ethics Codes
• Final Release 33-8177 1.23.03
  Original adoption as Item 10 of old Form 8-K

• Precedent examples

• Carry-over of former Form 8-K Item 9
• Furnished, not filed for purposes of Exchange
  Act § 18
• Item 7.01
• Regulation FD

• Release commentary

• Precedent examples

• Carry-over of former Form 8-K Item 5

• Release commentary

• Precedent examples

• Acquired entity financials and pro forma financials related to an acquisition are due within 71 days of the Item 2.01 Form 8-K due date
• Carry-over of former Form 8-K Item 7
• S-X 3-05 re: financial statements of acquired businesses
  S-X Art. 11 re: required pro forma financials for business combinations

• Precedent examples