8-Ks

Question 1

What’s another term that refers to 8-Ks and why?

Answer 1

Real time disclosure.

In addition to 10-Qs and 10-Ks, Exchange Act reporting companies are required to report certain events on a Current Report on Form 8-K, which, due to fairly short SEC filing deadlines, is as close to “real time” reporting as there is.

Question 2

Process if executive is resigning?

Answer 2

MNTA example - (1) 8-K: replacement, title (interim?), PFO/PAO, bio, comp / comp changes, due to disagreement blurb, messaging, who to run with printer / heads up to paralegal, filing timing (8:10 am, may want to move up to 8:00 am), iXBRL cover tagging; (2) section 16: edgar codes, form 3, any current holdings, form 4 / comp, heads up to paralegal; (3) approvals (UWC or resos for meeting), who should collect signatures if UWC, 16c and 3b-7 designations; (4)

Question 3

What triggers a 5.02(e) 8-K when a company’s board/comp committee adopts a form of agreement, if it has yet to be entered into?

Answer 3

We don’t think board or compensation (or other) committee adoption of a form of agreement triggers a 8-K, if the relevant executive and the company have not entered into the agreement yet. The 8-K deadline, in that case, is based on entering into the agreement. We should confirm with the client whether the agreement has been signed. [MNTA SVP Agreement 8-K March 2019].

Question 4

5.02(e) 8-K / example Jenna correspondence to comp team?

Answer 4

[Comp Specialist Associate/Marysia, cc partner] – are you able to put the substantive disclosure insert together? We can put together a shell 8-K [this weekend]. [MNTA SVP Agreement 8-K March 2019].

Question 5

1.01 8-K / example Jenna correspondence to client.

Answer 5

Hi [Mark], Sure, we can put together a draft 8-K. You are correct that entry into the agreement will trigger the disclosure. Are you okay filing the lease with the 8-K? Best, Jenna

Question 6

JC 8-K Comments…

Answer 6

• Should be the execution date, e.g. the date that the second party signs.
• Renting floor OF (not AT) the premises.
• The company “has agreed to” (not WILL) pay a termination fee with respect to the Premises of approx. X million.
• DURING the second lease year (not FOR).
• Add “o The foregoing description of the [Amendment] does not purport to be complete, and is qualified in its entirety by reference to the full text of the [Amendment], which is attached to this Form 8-K as Exhibit [10.1] and incorporated herein by reference.”

Question 7

JC Example Email to Coordinate with Printer

Answer 7

Here is the proof. Please tee up for filing at 4:15 pm. Thanks.

Question 8

2.02 8-K / discuss early release of top line results

Answer 8

Full top line = gross sales/revenue vs. bottom line = net income.

Preliminary “historical” results = [Precision/ask Ellen].

Post-year end examples: AMSC, Ribbon, TCS Precision.

JC: Must furnish PR on a 2.02 8-K. Should have qualifying language in the PR disclaimer along the lines of, these results are (i) preliminary and subject to completion of the audit and execution of the company’s internal control over financial reporting.

Financial Disclosure Advisory

“The expected financial results discussed in this press release are preliminary and represent the most current information available to the Company’s management, as financial closing procedures for the fourth quarter and fiscal year ended March 28, 2020 are not yet complete. These estimates are not a comprehensive statement of the Company’s financial results for the fourth quarter and fiscal year ended March 28, 2020 and actual results may differ materially from these estimates as a result of the completion of year-end accounting procedures and adjustments, including the execution of the Company’s internal control over financial reporting, the completion of the preparation and audit of the Company’s financial statements and the subsequent occurrence or identification of events prior to the formal issuance of the audited financial statements for fiscal 2019. In addition, any statements regarding the Company’s financial performance in fiscal April 2020 or to date in the first quarter of fiscal 2020 are not necessarily indicative of the Company’s financial performance that may be expected to occur for the first quarter of fiscal 2020 or for any future fiscal period.”