REPOST FOR VOLINTARY FILER :
wakl Member Level Wednesday, 05/03/17 11:48:40 AM
Re: None
Post # of 77688
8k is not a straight line:
Practice Tips:
A. Practice Tips – Required Brief Summary:
1. An agreement or amendment that triggers this item must be summarized in the body of the Form 8-K even if it is voluntarily filed as an exhibit to the Form 8-K. Incorporation by reference of the actual agreement or amendment does not satisfy the requirement to provide a brief description of the material terms and conditions of the agreement or amendment. (SEC CDI Question 102.03.)
2. While Item 1.01 requires a brief description of the agreement or amendment, the SEC staff has acknowledged that in some cases, the agreement or amendment may be so brief that it may make sense to disclose all of its terms in the body of the Form 8-K. (SEC CDI Question 102.03.)
3. Even when the need to prepare a confidential treatment application will prevent the company from filing an agreement or amendment with the Form 8-K, the company should identify those issues for which confidential treatment will be sought before filing the Form 8-K. Doing so will avoid the possibility of accidentally including as part of the “brief description” a provision for which confidential treatment would otherwise be available.
4. Where material, the brief description of terms and conditions required by this item should include each party’s rights and obligations, the duration of the agreement and the termination provisions.
5. If the company determines that a placement agency or underwriting agreement constitutes a material definitive agreement subject to filing under this item, the company is permitted to omit the identity of the underwriters from its Form 8-K in order to remain within the safe harbor from the definition of an “offer” included in Securities Act Rule 135c. (SEC CDI Question 102.02.)
B. Practice Tips – Voluntary Exhibit Filing:
1. A copy of the actual agreement or amendment that triggers this item is not required to be filed as part of the Form 8-K. Instead, the agreement or amendment must be filed as an exhibit to the Form 10-K or 10-Q covering the reporting period in which the agreement was executed or became effective. (SEC CDI 202.01.) As a result, the company continues to have the same time it previously did to prepare, where appropriate, an application for confidential treatment of portions of the agreement or amendment.
2. Although filing a copy of the agreement or amendment with the Form 8-K is not required and will not eliminate the requirement to include a “brief description” in the Form 8-K, in certain cases the company will find it advantageous to do so. Filing the actual agreement or amendment with the Form 8-K may reduce the risk of the company being second-guessed regarding the adequacy of the brief description required by this item.
C. Practice Tips – Covered Agreements and Amendments:
1. This item applies to both written and unwritten material definitive agreements. In the case of an oral agreement, when the time comes to file the agreement as an exhibit (either voluntarily with the Form 8-K or with a subsequent Form 10-Q or 10-K), the company must provide a written description of the agreement as the exhibit.
2. Disclosure of a material amendment may be required even if the underlying agreement has not been disclosed previously by the company (for example, because the amendment results in the agreement becoming material for the first time).
3. If a company enters into an immaterial amendment to a material definitive agreement, a Form 8-K will not be required under this item. However, the amendment, even though immaterial, may need to be filed as an exhibit to
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the Form 10-K or 10-Q covering the period in which the amendment was executed or became effective.
4. An agreement is “definitive” for purposes of applying the definition of “material definitive agreement” even if it is subject to conditions. The company should assume that a Form 8-K filing will be required even for an agreement that is subject to significant conditions such as the receipt of board approval.
5. When an agreement that was not material at the time it was initially entered into subsequently becomes material (for example because of a change in business circumstances, but not because of an amendment to the agreement), a Form 8-K will not need to be filed under this item. However, such a material agreement must be filed as an exhibit to Form 10-Q or 10-K that the company files for the reporting period in which the agreement became material. (SEC CDI Question 102.01.)
6. The company does not need to disclose under this item its entry into non-binding agreements, such as letters of intent. However, if a non-binding letter of intent contains some binding provisions, those provisions must be analyzed under the “material definitive agreement” definition. Binding provisions such as a confidentiality provision or a short exclusivity provision in an otherwise non- binding letter of intent relating to a potential M&A transaction should not generally be viewed as material and therefore would not trigger a Form 8-K requirement. However, more extensive binding provisions in an otherwise non-binding letter of intent (such as a termination fee), would, if material, trigger a Form 8-K filing obligation.
7. Entry by a subsidiary into a material definitive agreement not made in the ordinary course of business that is material to the company is reportable under this item. (SEC CDI Question 101.02.)
8. If a material definitive agreement (the termination of which would be material to the company) automatically renews unless one of
the parties sends a non-renewal notice during a specified window of time, no new Form 8-K under Item 1.01 is required if the agreement automatically renews. (SEC CDI Question 103.02.)
D. Practice Tips – Other:
1. A company may omit the Item 1.01 heading in a Form 8-K that also discloses any other item, so long as the substantive disclosure required by Item 1.01 is included in the Form 8-K. This does not extend to allowing a company to omit any other caption if the Item 1.01 caption is included.
2. The exclusion of compensatory arrangements from this item does not change the exhibit requirement for such arrangements for purposes of Form 10-Q or Form 10-K. As a result, a company remains obligated to file as an exhibit to its Form 10-Q or Form 10-K any plan, contract or arrangement covered by Item 601(b)(10)(iii) of Regulation S-K. As discussed above, a Form 8-K filing may also be required under Item 5.02(e).
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