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Checklist for <strong>Current</strong> Report on SEC Form 8-K (11-04) • 10(b) and 10b-5 liability. No failure to timely file a Form 8-K for the listed items will constitute a violation of Section 10(b) or Rule 10b-5. This safe harbor, however, lasts only until the due date of a company’s next periodic <strong>report</strong>, in which the company must make the disclosure otherwise required by Form 8-K. • Form S-3. Under the safe harbor, missing a deadline for any of the listed items will not disqualify use of Form S-3. (Previously, failure to timely file a Form 8-K disqualified a company from eligibility for 12 months.) However, a company filing a Form S-3 must have become current with all Form 8-K <strong>report</strong>ing by the time of filing the registration statement. Material misstatements or omissions in a Form 8-K are still subject to 10b-5 liability. • Rule 144. Reliance on Rule 144 to resell securities is conditioned on, among other things, the availability of current public information about a company. The SEC has clarified that a company need not have filed all required Form 8- K <strong>report</strong>s during the preceding 12 months to satisfy this condition. It is important to remember that the safe harbors only apply to the seven new items listed above and that none of these safe harbors in any way lessens or removes a company’s other <strong>report</strong>ing obligations or limits in any way liability that could arise from substantively inadequate disclosures. 6) Reorganized the items into topical categories, or “sections,” numbered 1 through 9, with subsections, or “items,” as follows: INDEX Section 1—Registrant’s Business and Operations • Item 1.01—Entry into a Material Definitive Agreement • Item 1.02—Termination of a Material Definitive Agreement • Item 1.03—Bankruptcy or Receivership Section 2—Financial Information • Item 2.01—Completion of Acquisition or Disposition of Assets • Item 2.02—Results of Operations and Financial Condition • Item 2.03—Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance-Sheet Arrangement of a Registrant • Item 2.04—Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation Under an Off-Balance-Sheet Arrangement • Item 2.05—Costs Associated With Exit or Disposal Activities • Item 2.06—Material Impairments Section 3—Securities and Trading Markets 4
Checklist for <strong>Current</strong> Report on SEC Form 8-K (11-04) • Item 3.01—Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing • Item 3.02—Unregistered Sales of Equity Securities • Item 3.03—Material Modification to Rights of Security Holders Section 4—Matters Related to Accountants and Financial Statements • Item 4.01—Changes in Registrant’s Certifying Accountants • Item 4.02—Nonreliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review Section 5—Corporate Governance and Management • Item 5.01—Changes in Control of Registrant • Item 5.02—Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers • Item 5.03—Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year • Item 5.04—Temporary Suspension of Trading Under Registrant’s Employee Benefit Plans • Item 5.05—Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics Section 6—[Reserved] Section 7—Regulation FD • Item 7.01—Regulation FD Disclosure Section 8—Other Events • Item 8.01—Other Events Section 9—Financial Statements and Exhibits • Item 9.01—Financial Statements and Exhibits 5
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