Section 1 of Form 8-K - YouTube

I'm attorney Laura Anthony founding partner of Legal & Compliance, a full service corporate,

securities, and business transactions law firm.

Today is the continuation in a LawCast series talking about Form 8-K. As I’ve been talking

about in this LawCast series, any U.S. reporting company must file periodic reports on Form

8-K. A foreign issuer uses a Form 6-K, which has different requirements.

In this and the rest of the LawCasts in this series, I will highlight the events that trigger

an 8-K filing.

Many transactions will require the filing under multiple Item numbers, in which case

the company can set forth all the material information and cross-reference the disclosure

under each Item.

Also, a Form 8-K can serve double duty and satisfy certain other filing requirements,

such as those related to proxy proceedings or business combination transactions.

The front page of the form 8-K provides check boxes to disclose such double use.

Section 1 relates to the company’s business and operations.

Item 1.01 discloses the Entry into a Material Definitive Agreement.

Material agreements are those that create material obligations that are enforceable

by or against a company.

As a rule of thumb, if an agreement is material enough to require separate board or shareholder

consent, it requires an 8-K filing.

Non-binding term sheets or letters of intent generally do not trigger a filing requirement,

though material binding provisions in the document may, such as significant breakup

fees.

A company is not required to file a copy of the agreement itself with the 8-K, but if

it does not, the agreement must be filed with the next periodic report on either Form 10-Q

or 10-K. As is encouraged by the SEC, I usually recommend that the agreement be filed with

the 8-K.

The determination of an 8-K filing requirement is made at the time the agreement is entered

into.

An a full materiality analysis must be made at that time.

If an agreement becomes material through the passage of time or events, an 8-K filing is

not later triggered, though disclosure would then be made in a 10-Q or 10-K. Item 1.02

discloses the Termination of a Material Definitive Agreement.

The termination of an agreement that is reported or reportable in Item 1.01, must be reported,

unless that termination occurs in accordance with the natural terms of the agreement itself.

Item 1.03 discloses Bankruptcy or Receivership.

An 8-K must be filed for bankruptcy or receivership actions involving either the company or its

parent i.e. its majority shareholder.

Item 1.04 discloses Mine Safety and the Reporting of Shutdowns and Patterns Violations.

The requirement for an 8-K is triggered by the receipt of a notice under the Federal

Mine Safety and Health Act of 1977 or from the Mine Safety and Health Administration.

I am securities attorney Laura Anthony, founding partner of Legal & Compliance, and producer

of LawCast.

Should you have any questions about today’s topic, please visit SecuritiesLawBlog.com

and LawCast.com, or contact me directly.

Inquiries of a technical nature are always encouraged.