Practitioner Checklists

Standard: Would a reasonable investor consider this agreement significant? This is the general securities law materiality standard: there is no bright-line dollar threshold. The question is whether the agreement imposes material obligations or grants material rights to the company.

• Agreements that impose obligations on subsidiaries may be reportable if material to the company as a whole. CDI 101.02
• An agreement subject to stockholder approval is still reportable when entered into; the contingency does not delay the filing obligation.
• Amendment of a previously disclosed agreement is reportable if the amendment itself is material.
• Consider whether the agreement also creates a direct financial obligation triggering Item 2.03, or modifies rights triggering Item 3.03.

• Date entered into and parties to the agreement
• Brief description of material terms, including material terms that could be triggered after initial execution
• Relationship of parties to the company (if any material relationship)

Exhibit 10.x: copy of the agreement (or form of agreement). Request confidential treatment under Rule 24b-2 for sensitive terms.

Filed (not furnished). However, a failure to timely file does not result in loss of S-3 eligibility (Item 1.01 is on the S-3 exception list). But the company must be current at the actual time of a Form S-3 filing.

The limited safe harbor from Section 10(b)/Rule 10b-5 for failure to file timely applies to Item 1.01, but only until the next periodic report due date. Material misstatements in the 8-K itself are never protected.

Same materiality standard as Item 1.01: would a reasonable investor consider the termination significant? If the original agreement was reported under Item 1.01, its termination is presumptively reportable.

• A termination of a merger agreement should be disclosed under both Item 1.02 and consider Item 2.01 implications.
• Mutual terminations are reportable if material.
• Consider whether the termination triggers severance or other financial obligations (Item 2.03 or 2.04).

• Date of termination and identity of the terminated agreement
• Brief description of material circumstances of termination
• Any material early termination penalties or payments

No exhibit typically required (the agreement itself was already filed). If a termination agreement was signed, consider whether it must be filed as an exhibit.

No materiality threshold; the triggering events are objective. Any appointment of a receiver or confirmation of a reorganization plan is reportable.

• For bankruptcy: Name of proceeding; identity of court; date jurisdiction assumed; identity and appointment date of receiver
• For reorganization/liquidation plan: Identity of court; date order entered; summary of material features of plan; copy of plan as confirmed (Exhibit); number of shares outstanding and reserved; assets and liabilities as of order date

Assets/liabilities information may be presented in the form furnished to the court.

Copy of the confirmed plan (Exhibit 99.x).

No materiality threshold; any imminent danger order under §107(a) or pattern-of-violations notice requires disclosure regardless of amount.

Prescribed statutory disclosure including the nature of the order or notice, mine affected, and regulatory details. Item 1.04 closely follows the Mine Act's disclosure requirements.

Quantitative factors: Expected % impact on revenue (lost sales); expected % impact on net income (lost revenues + containment/remediation expenses including any ransom); expected % impact on total/current assets.

Qualitative factors: Relative importance of affected systems; duration and detection method; ability to restore and integrity of restored systems; nature/scope of improperly accessed data; effect on "crown jewel" systems; reputational and brand harm; supply chain and customer relationship impact; competitive position; likelihood of regulatory action; likelihood of private litigation.

Factors that are NOT relevant: Whether affected system was owned by registrant or third-party; inability to determine full extent of incident; ongoing nature of internal investigation; timing of sharing with governmental authorities.

• While assessing materiality, consider whether trading windows should be closed.
• You may share incident information with commercial counterparties (vendors, customers) and other potentially affected companies without violating Regulation FD, provided those parties are either not subject to Reg FD or have provided confidentiality assurances. (June 2024 Statement)
• If information required by Item 1.05 is not available at time of filing, include a statement to that effect, then amend within 4 business days of when information becomes available (Instruction 1 to Item 1.05).
• Disclosure need not include specific technical information (system vulnerabilities, planned response details) that would impede response or remediation, but may still require discussion of data theft, asset loss, IP loss, reputational damage, or business value loss. (Instruction 4)
• The 2011 SEC Staff Guidance and 2018 Interpretive Release on cybersecurity remain applicable for incidents not specifically covered by Item 1.05 and for annual Item 106 Reg S-K disclosures.

Delayed Disclosure:

• U.S. Attorney General may determine disclosure poses substantial risk to national security or public safety → delay up to 30 days (extendable 30 + 60 additional days for national security only).
• FCC-regulated entities: CPNI breach disclosure may be delayed until 7 business days after notifying USSS/FBI.
• Requests for further delay beyond USAG periods → SEC exemptive order required.

• Material aspects of the nature, scope, and timing of the incident
• Material impact or reasonably likely material impact on the company, including financial condition and results of operations

No specific exhibit required. Do not attach incident response plans or detailed technical information.

Item 1.05 is on the S-3 exception list; failure to timely file does not cause 12-month S-3 ineligibility. Company must still be current at the actual time of any S-3 filing.

Note: Smaller reporting companies had until June 15, 2024 (180-day grace period has expired).

Item 1.05 is covered by the limited safe harbor for failure to file timely, but only until the next periodic report. Material misstatements in the 8-K itself remain subject to §10(b)/Rule 10b-5.

For assets only (not a business): Equity in net book value or amount paid/received > 10% of total assets (Instruction 4, clause (i)).

For an acquisition/disposition of a "business": Apply only the 20% significance tests of Rule 11-01 of Regulation S-X (clause (i) 10% tests do NOT apply to businesses). CDI 205.01

The equity method or fair value option investment in a business counts as an acquisition of a "business."

• Redemption or acquisition of the company's own securities is NOT a disposition under this item; sale of a subsidiary's equity (where subsidiary will not be wholly owned post-transaction) IS reportable. CDI 205.05
• The term "acquisition" includes mergers, consolidations, exchanges, and acquisitions by lease.
• The term "disposition" includes deconsolidation of a subsidiary (per SEC Financial Reporting Manual §2110.1).
• Age of financial statements in the 8-K is generally determined by reference to the filing date of the initial 8-K. (FRM §§2045.13, 2045.17)
• VIE/variable interest entity consolidated subsidiaries are included within scope. (Note to FRM §2005.8)

• Date of completion; brief description of assets involved
• Identity of counterparty; any material relationship between counterparty and company
• Nature and amount of consideration; formula if related party
• For acquisitions: source of funds (bank loan identity may be omitted in some circumstances)

• Financial statements of acquired business (Item 9.01): 71-day extension available for acquisitions (not dispositions) CDI 129.01
• Pro forma financial information (Item 9.01)
• Copies of plans of acquisition or disposition

For dispositions: pro forma financial statements required within 4 business days (no 71-day extension).

Item 2.01 is NOT on the S-3 exception list. Late filing causes 12-month S-3 ineligibility.

No separate materiality test; any public disclosure of material non-public information regarding a completed fiscal period triggers this item. Guidance for fiscal periods not yet ended does not trigger Item 2.02, unless included in a release covering a completed period. CDI 106.06

• The 48-hour exemption from furnishing: applies only if the presentation (a) is complementary to and initially occurs within 48 hours after a related written Item 2.02 8-K; (b) is broadly accessible; (c) the financial/statistical information is on the company website; and (d) it was announced by a widely disseminated press release.
• If the earnings release cannot be furnished before the conference call: furnish exhibit (transcript of relevant call portion, or slides) with material non-public information after the call. CDI 106.02
• Where earnings release filed as exhibit to Form 10-Q before the call, the 48-hour exemption is also available. CDI 106.04
• Audio files of webcast and slides posted on website are sufficient for the presentation exemption. CDI 106.01; unexpected Q&A disclosures must be posted "promptly." CDI 106.03
• An earnings pre-announcement issued before quarter end does not trigger Item 2.02; one issued after quarter end does trigger it.

• Date of announcement or release
• Brief identification of the announcement or release
• Text of announcement or release as an exhibit (Exhibit 99.1)

Exhibit 99.1: the earnings release. Confirm it is labeled "furnished" consistently throughout the 8-K form and exhibit reference.

Because Item 2.02 is furnished (not filed), a late submission does not affect S-3 eligibility. CDI 106.05 Not subject to §18 Exchange Act liability. Does not become part of incorporated documents for Securities Act purposes.

Material to the company; no bright-line amount. The Disclosure Committee should establish upfront quantitative guideposts for what constitutes "material" debt for the company, while recognizing the ultimate test is qualitative and fact-specific. CDI 107.02

• Material obligations of subsidiaries also trigger this item. CDI 101.02
• Clock starts when company enters into an agreement enforceable against it; if no prior agreement, clock starts at closing/settlement.
• Operating lease obligations (ASC 842) are now explicitly included in "direct financial obligation" definition.

• Date of obligation; brief description of transaction creating obligation
• For direct obligations: amount, payment terms, material acceleration/increase provisions, recourse provisions
• For off-balance sheet: nature and amount; terms under which contingent obligation may become direct; recourse provisions; maximum potential future payments (undiscounted)
• Other material terms of the arrangement

Material consequences to the company; must account for cross-default and cross-acceleration provisions in all outstanding agreements. A triggering event on one agreement may cascade across all debt.

• Pre-emptive action: inventory all material debt agreements and cross-default provisions so you know in advance what would cascade from any single default.
• Subsidiaries' triggering events: if material to the company, also reportable. CDI 101.02

• Date of triggering event; brief description of underlying agreement
• Brief description of triggering event
• Amount of obligation (as increased if applicable); payment/acceleration terms
• Any other material obligations that may arise or be accelerated as a direct or indirect result of the triggering event

Material charge under GAAP. "Commitment" means reaching a final determination, not merely active consideration. Board/committee minutes must clearly distinguish discussion from decision.

• Implement procedures to clearly document when commitment occurred (vs. mere discussion); board minutes are critical.
• "Commitment" to a plan: reaching a final determination, not merely taking preparatory steps.

• Date of commitment; description of course of action; facts and circumstances leading to the action
• Expected completion date
• Estimate of total amount/range of charges (aggregate and by major type)
• Estimate of amount/range of charges resulting in future cash expenditures

Material impairment charge under GAAP. Includes impairments of securities, goodwill, long-lived assets (ASC 360-10), and other assets. Note: re-measurement of deferred tax assets for tax law changes (ASC 740) is NOT an "impairment" under this item. CDI 110.02

• Implement procedures to clearly identify when the "conclusion" occurs vs. mere consideration; audit/compensation committee documentation is critical.
• Tax Cuts and Jobs Act deferred tax re-measurement: not reportable as an impairment. CDI 110.02

• Date of conclusion; description of impaired assets
• Facts and circumstances leading to the conclusion
• Estimate of amount/range of impairment charge
• Estimate of amount/range resulting in future cash expenditures

No materiality threshold for initial deficiency notices. For company-initiated notifications (Item 3.01(b)), the noncompliance must be "material."

• Build an internal early-warning system: monitor bid price compliance daily; track minimum market value, financial standards, and corporate governance requirements.
• The company is not required to file the actual exchange notice as an exhibit.
• After coming back into compliance, consider filing an amendment or new Item 8.01 8-K to inform investors.
• Routine or noncontroversial delistings (redemption of an entire class of securities) do not require an Item 3.01(a) 8-K.

• Date of notice or action; rule or standard in question
• Any action or response the company has determined to take as of the filing date
• For public reprimand: date and summary of the letter

Bright-line threshold: Aggregate sales >1% of outstanding shares (or >5% for SRCs). Outstanding = shares actually outstanding (NOT on a fully diluted basis). CDI 112.02

• Implement a rolling tracker of ALL unregistered equity sales since the last Item 3.02 report or periodic report. Sources to monitor: Rule 144A/PIPE placements; Section 3(a)(9) conversions; inducement grants outside stockholder-approved plans; M&A private placements.
• Disclosures about unregistered sales not previously reported on Form 8-K must be included in Part II, Item 2(a) of Form 10-Q or Part II, Item 5(a) of Form 10-K.
• Item 701(b) info (underwriter identity/purchaser class) may be included in the 8-K, but may be omitted if the offering is not yet complete and disclosure would go beyond Rule 135c safe harbor.

Item 701(a) and (c)-(e) of Regulation S-K: date of sale; title and amount of securities; aggregate offering price and underwriting discounts (cash); or nature and amount of non-cash consideration; Securities Act exemption relied upon; for convertibles/warrants, terms of conversion/exercise.

Material modification or limitation of rights. Working capital restrictions and dividend payment limitations are examples of material limitations on common stock rights.

• Date of modification or issuance
• Title of class of securities involved
• Brief description of general effect of modification or issuance

No materiality threshold; any change in principal accountant is reportable.

• New accountant related to former accountant (affiliates or member firms of same network) but separate PCAOB-registered entity: still required to file Item 4.01. CDI 114.02
• Accountant merger with another firm: evaluate structure and file if there is effectively a change. CDI 114.03
• PCAOB revocation of accountant registration: disclose this fact in the 8-K. CDI 114.01

• Departure: Whether resigned/declined/dismissed; date; whether past 2-year audit reports were qualified or adverse; whether audit committee recommended/approved change; disagreements or reportable events in prior 2 fiscal years + subsequent interim period
• New engagement: Identity; date of engagement; prior consultations with the new accountant (Item 304(a)(2))

Exhibit 7: former accountant's letter stating whether it agrees with company's disclosures.

Auditor's letter: provide copy within 2 business days of receipt (as amendment). Must be filed even if event occurs within 4 days of scheduled 10-K/10-Q filing. CDI 214.02

No separate materiality test; any error in previously issued financial statements under ASC 250 that causes non-reliance is reportable.

• Best practice: provide proposed disclosures to the accountant in advance of filing so their input can be incorporated and the letter can ideally be filed with the initial 8-K.
• Review SEC FRM §4600 for additional guidance on restatement disclosures.

• Date of conclusion or accountant notification; identification of affected financial statements
• Brief description of facts underlying the conclusion (to extent known)
• Statement of whether the audit committee/board discussed the subject matter with the accountant

Exhibit 7: accountant's letter (when filed by amendment, within 2 business days of receipt).

Note: 4.02(a) company-initiated restatement determinations are on the S-3 exception list. However, a restatement itself is likely to impair S-3 eligibility under the "current in filings" requirement at time of offering.

Knowledge standard: "known to" an executive officer, board, or board committee. No separate materiality threshold. The fact of a change in control (or arrangement that may result in one) is itself the trigger.

• For completed change in control: identity of acquirer and person from whom control was assumed; date and description of transaction; basis of control (% voting securities); amount and source of funds; any arrangements regarding director election or other matters
• For arrangements that may result in change in control: description per Item 403(c) of Regulation S-K, including pledges of securities

5.02(a): Director Departure Due to Disagreement

5.02(b): Other Director/Officer Departures

5.02(c): Appointment of Principal Officer

5.02(d): Election of Director (other than at annual/special meeting)

5.02(e): Compensatory Arrangements

5.02(f): Late Executive Compensation Determinations

• Notification of termination effective a specified number of days later: clock starts on date of notification, not effective date. CDI 217.05
• Board's decision NOT to nominate a director for re-election does not trigger 5.02(b); if the director then resigns in response, the resignation triggers a 5.02(b) filing. CDI 117.04
• Director designated by majority shareholder giving contingent resignation notice (contingent on share sale): triggers 5.02(b) immediately; clearly describe the contingency. CDI 217.03
• 5.02(b) and 5.02(c): former officer departure and new officer appointment are separate reporting obligations with separate clocks.

• Consider voluntarily adding independence disclosure for newly elected directors.
• Non-employee director compensatory arrangement changes: generally outside scope of Item 1.01 and Item 5.02(e) and will NOT trigger a Form 8-K. However, when a director is elected under 5.02(d), must describe compensatory arrangements (may cross-reference prior proxy statement description). CDI 117.16

• Plans available generally to all salaried employees (e.g., §423 ESPP) do not need to be disclosed under this item.
• 5.02(e) requires disclosure of both written and unwritten material plans, contracts, and arrangements.
• Ad hoc discretionary bonus under previously disclosed arrangement where eligibility is already reflected in an employment agreement: may not require a 5.02(e) 8-K. CDI 117.13
• If a company no longer must include the executive in the Summary Compensation Table due to low compensation, no 5.02(b) 8-K is required solely on that basis. CDI 117.02

• 5.02(a): Resignation/refusal/removal date; board committee positions held; description of disagreement; director's response letter (as exhibit)
• 5.02(b): Fact of event, date, effective date; for refused re-election: date of election in question
• 5.02(c): Name, position, appointment date; biographical info (Item 401(b)(d)(e) of Reg S-K); related person transactions (Item 404(a)); material compensatory arrangements and grants in connection with appointment
• 5.02(d): Name, election date; description of any arrangement under which director was selected; any committee assignments (or statement that not yet determined, to be amended); related person transactions; compensatory arrangements
• 5.02(e): Brief description of terms and conditions; amounts payable
• 5.02(f): NEO name; salary/bonus information; recalculated total compensation; if PEO, pay ratio disclosure (if previously required)

Note: 5.02(a) and 5.02(b) are NOT covered by the limited safe harbor; the consequences of a late filing are severe. Build strong internal controls for capturing these events.

Exception: 5.02(c) new officer appointment may be delayed until day of public announcement if the company plans a press release. Amendment required within 4 business days if required info not available at initial filing.

Any amendment not previously disclosed in proxy materials is reportable. No materiality threshold for charter/bylaw amendments.

• Applies only to companies with a class of equity securities registered under Section 12 of the Exchange Act.

• For amendments: Effective date; description of provision adopted/changed; description of previous provision (if applicable)
• For fiscal year change: Date of determination; new fiscal year-end; form on which transition period will be reported

Text of amended provision (as exhibit). Complete amended document with next 10-Q or 10-K.

• Customary practice: file a copy of the notice sent to officers and directors as an exhibit.

Reason(s) for blackout period; plan transactions to be suspended; class of equity securities subject to blackout; actual or expected beginning and ending dates (or calendar week ranges); name, address, and telephone of designated contact person.

• Brief description of date and nature of any amendment
• Brief description of nature and date of waiver; person to whom waiver was granted

• Instruction 3: If no proxies solicited and board is re-elected in its entirety, a simple statement to that effect suffices instead of listing all directors and vote counts.
• If preliminary results disclosed and then final results filed by amendment, consider whether the total picture could be confusing and add explanatory context.
• If a compensatory plan was approved at the meeting, consider whether Item 5.02(e) reporting is also triggered.
• General Instruction B.3: company may report Item 5.07 information in a periodic report filed on or before the 8-K due date; if so, may file a new 8-K (rather than amending the 10-K/10-Q) to report the frequency decision.

• Date of meeting (annual or special); description of each matter voted upon
• Number of votes for, against, withheld; abstentions; broker non-votes (for EACH matter)
• For say-on-frequency: votes cast for 1-year, 2-year, 3-year, and abstentions
• Terms of any settlement terminating a proxy contest, including costs
• Company's frequency decision following a say-on-frequency vote

The date by which a nominating shareholder or shareholder group must submit the Schedule 14N required by Rule 14a-18, so that shareholders can plan their submission timing.

The material non-public information being disclosed (press release, slide deck, or other materials as Exhibit 99.x).

Because it is furnished, not filed: not subject to §18 liability; not incorporated by reference into registration statements; does not appear in certain EDGAR search filters for "filed" documents.

Because Item 8.01 is voluntary and there is no required filing deadline, there can be no "late" filing in the traditional sense. However, because it IS filed, it is incorporated by reference and subjects the company to full Securities Act liability for any material misstatements.

• Item 9.01(a): financial statements of businesses acquired (§3-05/§8-04 of Regulation S-X)
• Item 9.01(b): pro forma financial information (Article 11 of Regulation S-X)
• Item 9.01(d): exhibits (all required and voluntarily attached)
• Age of financial statements: generally determined by reference to the filing date of the initial 8-K, not any amendment.

Depends on the triggering item(s). Common exhibits: Exhibit 10.x (material agreements, Item 1.01); Exhibit 7 (auditor letter, Item 4.01/4.02); Exhibit 99.1 (press releases, earnings releases, Item 2.02/8.01); Exhibit 99.2 (slides, supplemental materials). For acquisitions: financial statements and pro forma info.