Item 6, 7, and 8 of Form 8-K
Posted by Attorney Laura Anthony on February 14, 2017
Item 6, 7, and 8 of Form 8-K- Any company subject to the reporting requirements of the Securities Exchange Act of 1934, must file periodic reports on Form 8-K. I have been going through the events that trigger such 8-K filing requirement.
Section 6 relates to Asset-Backed Securities- Item 6.01 reports ABS Informational and Computational Materials
Item 6.02 reports the Change of Servicer or Trustee – This Item includes changes, whether through resignation or termination.
Item 6.03 reports the Change in Credit Enhancement or Other External Support and requires a report of any material changes, whether through the loss, addition or change in support.
Item 6.04 reports the Failure to Make a Required Distribution – Item 6.04 Only requires the report of material failures to distribute in a timely manner.
Item 6.05 reports Securities Act Updating Disclosure and Includes material changes in an offering of AB securities.
Item 6.06 reports a Static Pool and is used as an Alternative to filing a prospectus supplement required by Item 1105 of Regulation AB.
Section 7 relates to Regulation FD- Item 7.01 reports Regulation FD Disclosure – Item 7.01 Information should be furnished and not filed. Where the information is material non-public information, such as in a press release, the filing must be made immediately prior to or simultaneously with the issuance of the release. Where information is accidentally released, the filing must be made immediately after the release and on the same calendar day. Regulation FD disclosures are an exception to the usual four-day filing rule.
Section 8 relates to Other Events- Item 8.01 reports Other Events – This is a catch-all voluntary filing by companies that wish to report information that does not otherwise fit within an 8-K category. Because the information is voluntary and not otherwise required, there is no four-day filing rule.
Section 9 relates to Financial Statements and Exhibits and is the last category of Form 8-K- Item 9.01 includes Financial Statements and Exhibits – Item 9.01 Requires the filing of all financial statements and exhibits required by other Items on Form 8-K and specifies such financial statement requirements. In addition, Item 9.01 sets forth the timing of filing of the financial statements for both shell and non-shell companies.
Late or missed filings carry severe consequences to companies. To qualify to use Form S-3, a company must have filed all SEC reports in a timely manner, including Form 8-K, for the prior 12 months. Filing failures can also result in enforcement proceedings and the conclusion of and disclosure related to inadequate controls and procedures.
I have mentioned that some information may be furnished and not filed. Section 18 of the Exchange Act imposes liability for material misstatements or omissions contained in reports and other information filed with the SEC. However, reports and other information that are “furnished” to the SEC do not impose liability under Section 18. The SEC allows certain information to be furnished as opposed to filed; however, it is incumbent upon the company to clearly disclose that it is avowing itself of the ability to furnish and not file. Unless otherwise specifically disclosed, information in a report made with the SEC will be deemed filed, not furnished. Also note that other liability provisions under the Exchange Act may apply that are not dependent on the filing of documents, such as the anti-fraud provisions under Rule 10b-5.