Corporate lawyers working in-house at a public company are responsible for monitoring events that could trigger a requirement to file a Current Report on Form 8-K with the Securities and Exchange Commission (SEC). In-house counsel at public companies will regularly draft or review drafts of 8-Ks.

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Even though the 8-K filing requirement only is applicable for public companies, in-house lawyers at private companies should review the 8-Ks of peer companies on a regular basis. The Form 8-K provides investors and the public with pertinent information about material events occurring with respect to a given company.

A report on Form 8-K is required to be filed or furnished upon the occurrence of one or more events specified in the SEC rules. Such filing must occur within four business days of the triggering event.

Select Topics Requiring an 8-K Filing

Item 1.01. Entry into a Material Definitive Agreement

• 8-K requirement triggered when the company enters into a material definitive agreement not made in the ordinary course of business
• The 8-K must include a summary of terms

Item 1.02. Termination of a Material Definitive Agreement

• 8-K requirement triggered when the company terminates a material definitive agreement not made in the ordinary course of business
• The 8-K must include a summary of terms
• No disclosure required for negotiations or discussions regarding termination
• No disclosure required if company believes in good faith that there has been no termination

Item 2.01. Completion of Acquisition or Disposition of Assets

• 8-K requirement triggered when the company completes an acquisition or disposition of a “significant amount of assets” not in the ordinary course of business
• The 8-K should disclose the identity of the source of funds if there is a material relationship

Item 2.02. Results of Operations and Financial Condition

• 8-K requirement triggered when the company releases material, non-public financial information for a completed quarterly or annual fiscal period
• An 8-K is not required for slides, transcripts, or recordings of earnings calls, if certain criteria are met

Item 2.03. Creation of a Direct Financial Obligation or Obligation Under Off-Balance Sheet Arrangement

• 8-K requirement triggered when the company becomes obligated on a direct, material financial obligation or off-balance sheet arrangement

Item 2.04. Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement

• 8-K requirement triggered upon occurrence of event that causes an increase or acceleration of a direct, material financial obligation

Item 2.05. Costs Associated with Exit or Disposal Activities

• 8-K requirement triggered when the company’s board of directors, a board committee, or an authorized officer commits the company to an exit or disposal plan or otherwise disposes of a long-lived asset
• The 8-K should include an estimate of the amount or range of amounts of the impairment charge

Item 2.06. Material Impairments

• 8-K requirement triggered when the company’s board of directors, a board committee, or an authorized officer concludes that a material charge for impairment to the company’s assets is required under generally accepted accounting principles (GAAP)
• The 8-K should include an estimate of the amount or range of amounts of the impairment charge

Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers

• 8-K requirement triggered when the company’s directors are removed for cause, resign, or refuse to stand for re-election
• 8-K requirement triggered when directors are newly elected
• 8-K requirement triggered when certain executive officers resign, retire, or are terminated
• 8-K requirement triggered when certain executive officers are newly appointed

Item 5.03. Amendments to Certificate of Incorporation or By-laws; Change of Fiscal Year

• 8-K requirement triggered when the company’s certificate of incorporation or by-laws are amended
• 8-K requirement triggered when the company decides to change its fiscal year without putting the decision to a vote of security holders

Item 5.05. Amendments to Code of Ethics; Waiver of a Provision of Code of Ethics

• 8-K requirement triggered when the company amends or grants a waiver of a provision to its code of ethics that is applicable to its principal executive officer, principal financial officer, or person performing similar functions
• 8-K disclosure is not required if the information was posted on the company’s website within four business days

Item 5.07. Submission of Matters to a Vote of Security Holders

• 8-K requirement triggered when the results of a vote of the company’s security holders are available

Item 7.01. Regulation FD Disclosure

• Under Regulation Fair Disclosure (“FD”), an 8-K is required within 24 hours of the occurrence of selective disclosure in order to make that information available to the entire market
• In lieu of an 8-K, in certain circumstances, the company may broadly disseminate the information to the public by publishing a press release

Item 8.01. Other Events

• 8-K disclosure for events that are important to security holders, but not otherwise expressly required

Materiality Standards and Thresholds for 8-K Filings

The SEC rules provide some guidance on the quantitative thresholds and qualitative standards for determining whether an event is material enough to trigger an 8-K obligation. For example, the quantitative numerical report threshold for deeming a supply contract a material definitive agreement requiring an 8-K filing under Item 1.01 is that the supply contract accounts for more than 10% of the company’s consolidated revenues.