We have prepared this Guide to assist public companies in understanding and complying with the Form 8-K reporting requirements. This Guide describes Form 8-K primarily from the perspective of a U.S. operating company that has a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") and that is not a shell company, a smaller reporting company, a foreign private issuer, an asset-backed issuer or an investment company.
In addition to summarizing the events that trigger a Form 8-K requirement and the disclosures that must be provided when such an event occurs, this Guide includes a number of practice tips that represent our understanding of the disclosure requirements and how they should generally be applied. The practice tips contained in this Guide must be considered in light of the specific facts and circumstances of each situation, interpretive guidance that the SEC staff from time to time provides and developments in practice that may evolve over time.
Please keep in mind that this Guide is for general informational purposes only and does not represent our legal advice as to any particular set of facts; nor does this Guide represent any undertaking to keep recipients advised as to all relevant legal developments. You should contact your regular WilmerHale attorney to discuss how the Form 8-K requirements apply to specific factual situations.
Introduction
Form 8-K requires public companies to make prompt disclosures about a large number of specified events. Although Form 8-K does not mandate current reporting of all material events, it goes a long way toward requiring public companies to keep the markets informed of material developments on a day-to-day basis.
Public companies need to ensure that they have in place disclosure controls and procedures that will permit them to monitor developments that could trigger a Form 8-K filing requirement. In addition, some of the Form 8-K disclosure requirements are triggered by a decision of the board of directors, so it is important to plan board actions with these requirements in mind.
This Guide provides a summary of both the substantive and procedural aspects of Form 8-K. The first section of this Guide discusses filing mechanics, including filing deadlines, cover page check boxes, exhibit requirements and certain other technical and related matters. The second section discusses each reportable event and includes practice tips for complying with the Form 8-K requirements and implementing effective controls and procedures. The last two sections of this Guide outline the impact of the Form 8-K requirements on controls and procedures and the liabilities and limited relief related to the requirements.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
