United States: Transactional & Securities Update - July 2004

Effective Date Approaching for SEC Rules Expanding Disclosure Requirements and Accelerating Filing Deadline for Form 8-Ks

New Form 8-K rules will be effective August 23, 2004 that will have three principal consequences. First, the rules significantly expand the number of events that public companies must report by filing a Form 8-K. Second, the rules shorten the filing deadline for most items to four business days after the reportable event occurs, although the rules provide some relief for late filings. Third, the rules reorganize all prior and new Form 8-K items into topical categories using a new numbering system. The new rules are intended to further the disclosure goals of Section 409 of the Sarbanes-Oxley Act of 2002, which requires public companies to disclose on "a rapid and current basis" material information regarding changes in financial condition or operations. The SEC adopted the new rules on March 16, 2004 to complete the process that the SEC commenced in June 2002 with proposed changes to Form 8-K.

This article addresses the SEC's new rules in two ways. First, this article summarizes below the principal changes that the SEC made with its new rules regarding Form 8-Ks. Second, Appendix A sets forth each item of the reorganized Form 8-K and describes in greater detail the new and expanded Form 8-K disclosure items and disclosure items that were transferred to Form 8-K from Forms 10-Q and 10-K. This article discusses the implications of the new rules generally and does not discuss the SEC's rules and exceptions relating to foreign private issuers and small business issuers.

The new rules add the following new events as items requiring disclosure on Form 8-K:

• entry into, amendment of or termination of a material definitive agreement;

• creation of a material direct financial obligation or creation of a material obligation under an off-balance sheet arrangement;

• triggering events that accelerate or increase a material obligation under a material direct financial obligation or that accelerate or increase an off- balance sheet arrangement;

• a commitment through corporate action to exit or disposal activities under which a company will incur material charges under GAAP;

• determination that a company is required to record a material impairment charge under GAAP;

• notice of delisting or failure to satisfy a continued listing rule or standard or transfer of listing; and

• determination that investors should no longer rely on previously issued financial statements or a related audit report or completed interim review.

The new rules transfer the following disclosure items from Forms 10-Q and 10-K to Form 8-K:

• unregistered sales of equity securities by a company aggregating at least one percent of the outstanding class; and

• material modifications to rights of holders of a company's registered securities.

In addition, the new rules expand two current disclosure items to require disclosure of:

• departure of directors or principal officers, election of directors other than by shareholder vote and appointment of principal officers; and

• amendments to a company's certificate or articles of incorporation or bylaws if the company did not propose the amendment in a previously filed proxy statement, and any change in fiscal year other than by shareholder vote.

The new rules require a public company to file a Form 8-K within four business days of a triggering event. This requirement replaces the previous five business day or 15 calendar day deadlines, but the period is longer than the two business days that the SEC had proposed. However, the new rules do not affect the Regulation FD deadlines for furnishing or filing Form 8-Ks to satisfy Regulation FD disclosure obligations. Accordingly, a company must still make simultaneous public disclosure, using a Form 8-K or other acceptable means, for intentional disclosures of material nonpublic information and prompt (i.e., within 24 hours) public disclosure for unintentional disclosures of material nonpublic information. In addition, the new accelerated deadline does not apply to voluntary disclosures of events that do not otherwise require a Form 8-K filing, to companies desiring to take advantage of the 48-hour safe harbor for earnings conference calls or to the filing of financial statements and pro forma financial information relating to certain business combinations as exhibits to a Form 8-K.

In consideration of the difficulties a company may encounter in quickly assessing whether an event requires the company to file a Form 8-K, the SEC created a new limited safe harbor from public and private claims under Section 10(b) of the Exchange Act and Rule 10b-5 thereunder for a failure to timely file a Form 8-K relating to the following new events regardless of the reason for the untimely filing: (1) entry into, amendment of or termination of a material definitive agreement; (2) creation of a material obligation under an off-balance sheet arrangement or a material direct financial obligation; (3) triggering events that accelerate or increase a material obligation under an off-balance sheet arrangement or a material direct financial obligation; (4) a commitment through corporate action to exit or disposal activities under which a company will incur material charges under GAAP; (5) determination that a company is required to record a material impairment charge under GAAP; (6) notice of delisting or failure to satisfy a continued listing rule or standard or transfer of listing; and (7) a company determination that investors should no longer rely on previously issued financial statements or a related audit report or completed interim review (but only if the company does not receive a notice from its accountants that disclosure should be made or action should be taken to prevent future reliance on a previously issued audit report or completed interim review).

The safe harbor applies only to a failure to timely report these events on Form 8-K and does not apply to material misstatements or omissions in a Form 8-K. The safe harbor also does not provide a company protection from Section 10(b) and Rule 10b-5 liability that may arise from a company's failure to satisfy independent disclosure obligations that stem from requirements outside of Form 8-K. In addition, the safe harbor does not affect the SEC's ability to enforce the Form 8-K requirements under Sections 13(a) and 15(d) of the Exchange Act. Furthermore, the safe harbor extends only until the due date for a company.s next periodic report. Thus, if a company fails to make the required disclosure in its next periodic report, then the company will be subject to potential liability under Section 10(b) and Rule 10b-5 for a failure to timely file a Form 8-K.

Currently, a company's eligibility to use Form S-2 and S-3 short-form Securities Act registration statements depends in part on whether the company has filed Exchange Act reports, including Forms 8-K, on a timely basis. Also in consideration of the difficulties a company may encounter in light of the Form 8-K changes, the SEC revised the Form S-2 and S-3 eligibility requirements to provide that companies that fail to file timely Form 8-Ks with respect to the disclosure items covered by the Section 10(b) and Rule 10b-5 limited safe harbor will not lose their eligibility to use Form S-2 and S-3 registration statements regardless of the reason for the untimely filing. However, a company must be current in its Form 8-K filings on or before the date that it files a Form S-2 or Form S-3 registration statement. If a company fails to timely file a Form 8-K with respect to a disclosure item that is not covered by the limited safe harbor, then the company will lose its Form S-2 or S-3 eligibility for the 12 months following the Form 8-K due date.

The new rules also amend Rule 144 under the Securities Act of 1933 to provide that failure to file required Form 8-K reports (not just those covered by the Section 10(b) and Rule 10b-5 limited safe harbor) during the 12 months preceding a sale of securities is disregarded in determining whether the company satisfies the Rule's current public information. condition pursuant to Rule 144 regardless of the reason for not filing such Form 8-K reports.

Practical Implications Of The New Form 8-K Requirements

Companies should review and potentially modify their disclosure controls and procedures to ensure that information required to be disclosed on Form 8-K is communicated to management to permit timely decisions regarding such disclosure. The expanded disclosure requirements for Form 8-Ks under the new rules will require companies to be on careful watch for transactions and events that trigger Form 8-K filing requirements. The accelerated filing deadlines for Form 8-Ks under the new rules will require management and a company's accountants and counsel to coordinate and be responsive to the filing requirements in a short time period. Modifications to disclosure controls and procedures may involve adding additional personnel into the Form 8-K disclosure process based on the personnel that are likely to have knowledge regarding each of the new Form 8-K disclosure items. For example, human resources personnel may have been involved in the disclosure process only periodically in the past to ensure that an employment agreement with an executive officer was filed as an exhibit to a Form 10-Q or 10-K and described in the proxy statement. Under the new rules, such an agreement would give rise to a Form 8-K filing obligation as a material definitive agreement.

Companies are reminded that the SEC's Form 8-K requirements are not the only obligations requiring public companies to disclose information. First, material misstatements or omissions in a Form 8-K continue to be subject to Rule 10b-5 liability. Thus, a company may be required to disclose more information than a specific Form 8-K item requires if there is additional material information that is necessary to make the required statements in the Form 8-K not misleading. For example, a company may need to analyze the potential effects of an event on the company. Second, companies may have an obligation to issue a press release under New York Stock Exchange or Nasdaq rules where no Form 8-K items are applicable if a company is aware of information that would reasonably be expected to materially affect the market for or value of its securities or influence investors' decisions.

Section 1 — Registrant's Business and Operations

Item 1.01 requires a company to disclose when it has entered into "a material definitive agreement not made in the ordinary course of business" and any material amendments to such an agreement. While the item refers, as quoted above, to material agreements "not made in the ordinary course of business," the standard for whether an agreement is made outside the ordinary course of business is the standard contained in Item 601(b)(10) of Regulation S-K for whether an agreement must be filed as an exhibit to a periodic report. Accordingly, the standard includes agreements with and compensation plans for executive officers and ordinary course agreements upon which the company's business is substantially dependent. A material amendment to a material definitive agreement may trigger a disclosure requirement under Item 1.01 though the initial entry into the material definitive agreement occurred prior to the effectiveness of the new rules. The new rules do not require a company to disclose non-binding agreements, such as a letter of intent, as the SEC had previously proposed. However, disclosure is required when an agreement becomes enforceable by or against a company regardless of whether the agreement is subject to conditions that have not been satisfied. For example, the entry into a material acquisition agreement subject to conditions such as completion of due diligence or regulatory approval must be disclosed.

The required disclosure must include the date of the agreement or amendment, the parties to the agreement, a brief description of any material relationship between the company or its affiliates and the other parties and a brief description of the material terms and conditions of the agreement or amendment. A company is not required to file an agreement or amendment as an exhibit until the filing of its next periodic report, although the SEC encouraged companies to file a material agreements or amendments as exhibits to the Form 8-K when possible.

Item 1.02 requires a company to disclose the termination of "a material definitive agreement not made in the ordinary course of business" other than as a result of the expected expiration of the agreement or the completion of obligations under the agreement where such termination is material to the company. Disclosure is not required during negotiations or discussions regarding termination until the agreement has been terminated or if a company believes in good faith that the agreement has not been terminated, but the company must disclose the termination if the company has received a notice of termination under the agreement.

The required disclosure must include the date of termination of the agreement, the parties to the agreement, a brief description of any material relationship between the company or its affiliates and the other parties, a brief description of the material terms and conditions of the agreement, a brief description of the material circumstances surrounding the termination and any material early termination penalties incurred by the company.

Item 1.03 is substantively the same as current Item 3 of Form 8-K regarding a company's entry into bankruptcy or receivership.

Section 2 — Financial Information

Item 2.01 retains most of the substantive requirements included in current Item 2 of Form 8-K, which requires disclosure if a company has acquired or disposed of a significant amount of assets outside of the ordinary course of business. However, disclosure will no longer be required regarding the nature of the business in which the acquired assets were used and whether the company acquiring the assets intends to continue such use. In addition, disclosure of the source of funds will only be required if there is a material relationship between the funding source and the company. Similarly, disclosure of the formula or principle followed in determining the amount of consideration involved in an acquisition or disposition will only be required if there is a material relationship between the company and the person from whom assets were acquired or to whom assets were sold.

The SEC acknowledged that there often will be an overlap between the disclosure provided under Item 2.01 and Item 1.01. Generally, a company will report its entry into a material definitive agreement to acquire or dispose of assets under Item 1.01, and then later disclose the closing of the acquisition or disposition transaction under Item 2.01. However, a company will not necessarily be required to provide the Item 2.01 disclosure regarding every material definitive acquisition or disposition agreement disclosed under Item 1.01 because Item 2.01 includes a bright-line reporting threshold that is not included in Item 1.01. A company need only report a completed acquisition or disposition of assets if the transaction meets the significant asset test set forth in Item 2.01, which is the same as in current Item 2.

Item 2.02 is substantively the same as current Item 12 of Form 8-K regarding public announcements or releases of material non-public information regarding a company's results of operations or financial condition for a completed fiscal period.

Item 2.03 requires disclosure if a company becomes obligated under a direct financial obligation that is material to the company. "Direct financial obligation" is defined to mean any long-term debt obligation, capital lease obligation or operating lease obligation, each of which has the same meaning as under the SEC's rules requiring tabular disclosure of contractual obligations in MD&A, as well as any short-term debt obligation that arises other than in the ordinary course of business. The company must disclose the date on which the company became obligated on the direct financial obligation; a description of the transaction or agreement creating the obligation; the amount of the obligation, including the terms of payment; a description of the material terms under which the obligation may be accelerated or increased; the nature of any recourse provisions that enable the company to recover from third parties; and a description of the other terms and conditions of the transaction or agreement that are material to the company. The disclosure obligation arises when the company enters into an enforceable agreement, whether or not subject to conditions, under which the direct financial obligation will arise or be created or issued or, if there is no such agreement, after the closing or settlement of the transaction or arrangement under which the direct financial obligation arises or is created.

Item 2.03 also requires disclosure if a company becomes directly or contingently liable for an obligation that is material to the company arising out of an off-balance sheet arrangement. .Off-balance sheet arrangement. is used as defined in the SEC's rules regarding disclosure of off-balance sheet arrangements in MD&A. The company must disclose the date on which the company became liable on the obligation; a description of the transaction or agreement creating the off-balance sheet arrangement and obligation; a description of the nature and amount of the obligation of the company under the off-balance sheet arrangement, including the material terms under which it may become a direct obligation, or may be accelerated or increased, and the nature of any recourse provisions that enable the company to recover from third parties; the maximum potential amount of future payments that the company may be required to make; and a description of the other terms and conditions of the obligation or off-balance sheet arrangement that are material to the company. A company must provide the disclosure regarding off-balance sheets arrangements regardless of whether the company is a party to the transaction or agreement creating a contingent obligation arising under the off-balance sheet arrangement. If neither the company nor an affiliate is a party to such transaction or agreement, then the four-business day reporting deadline does not begin to run until the earlier of the fourth business day after the contingent obligation is created or arises or the day on which an executive officer of the company becomes aware of the contingent obligation.

If the obligation required to be disclosed is a security that has been or will be sold pursuant to an effective registration statement of the company, then the company is not required to file a Form 8-K if the prospectus relating to the sale contains the information required by Item 2.03 and the company files the prospectus with the SEC within the time period required under Rule 424 of the Securities Act of 1933.

Item 2.04 requires a company to disclose if a triggering event causing the increase or acceleration of a direct financial obligation of the company occurs and the consequences of the event are material to the company. The company must disclose the date of the triggering event, a description of the agreement or transaction under which the direct financial obligation was created and is increased or accelerated, a description of the triggering event, the amount of the direct financial obligation (as increased), the terms of payment or acceleration that apply and any other material obligations of the company that may arise, increase, be accelerated or become direct financial obligations as a result of the triggering event or the increase or acceleration of the direct financial obligation.

Item 2.04 also requires a company to disclose if a triggering event occurs causing a company's obligation under an off- balance sheet arrangement to increase or be accelerated, or causing a company's contingent obligation under an off-balance sheet arrangement to become a direct financial obligation of the company, and the consequences of the event are material to the company. The company must disclose the date of the triggering event, a description of the off-balance sheet arrangement, a description of the triggering event, the nature and amount of the obligation (as increased), the terms of payment or acceleration that apply and any other material obligations of the company that may arise, increase, be accelerated or become direct financial obligations as a result of the triggering event or the increase or acceleration of the obligation under the off-balance sheet arrangement or its becoming a direct financial obligation of the company. A company must provide the disclosure regarding the triggering regardless of whether the company is a party to the transaction or agreement under which the triggering event occurs.

Disclosure is not required unless and until a triggering event has occurred pursuant to the terms of the relevant agreement, transaction or arrangement, including, if required, notice to the company of the occurrence of a triggering event and satisfaction of all conditions to the occurrence other than the passage of time. Disclosure is also not required if a company believes in good faith that no triggering event has occurred, but the company must disclose the triggering event if the company has received a notice of the triggering event.

Item 2.05 requires a company to disclose when the company's board of directors, a board committee or an authorized officer of the company commits the company to an exit or disposal plan or to otherwise dispose of a long-lived asset or terminates employees under a plan of termination under which the company will incur material charges under generally accepted accounting principles ("GAAP"). The company must disclose the date of the commitment; a description of the course of action, including the facts and circumstances leading to the expected action and the expected completion date; an estimate of the total amount or range of amounts expected be incurred in connection with the action for each major type of cost associated with the action; an estimate of the total amount or range of amounts expected to be incurred in connection with the action; and the company's estimate of the amount or range of amounts of the charge that will result in future cash expenditures. If the company is unable to make a good faith estimate of the amount of the charges at the time of the filing, the company may omit the estimate, but must amend the Form 8-K within four business days after the company formulates an estimate.

Item 2.06 requires a company to disclose when the company's board of directors, a board committee or an authorized officer of the company concludes that a material charge for impairment to one or more of its assets, including an impairment of securities or goodwill, is required under GAAP. The company must disclose the date of the conclusion that a material charge is required, a description of the impaired assets and the facts and circumstances leading to the conclusion, the company's estimate of the amount or range of amounts of the impairment charge and the company's estimate of the amount or range of amounts of the impairment charge that will result in future cash expenditures. If the company is unable to make a good faith estimate of the amount of the charge at the time of the filing, the company may omit the estimate, but must amend the Form 8-K within four business days after the company formulates an estimate. Form 8-K disclosure is not required if the conclusion regarding the material charge is made in connection with the preparation, review or audit of financial statements to be included in the next periodic report, the conclusion is disclosed in the company's periodic report and the periodic report is filed on a timely basis.

Section 3 — Securities and Trading Markets

Item 3.01 requires a company to disclose its receipt of a notice from a national securities exchange or association maintaining the principal listing for the company's equity securities that the company or its common equity securities do not satisfy a rule or standard for continued listing on the exchange or association or of delisting from the exchange or association. Item 3.01 also requires the company to disclose that it has notified a national securities exchange or association maintaining the principal listing for the company's equity securities that the company is aware of any material noncompliance with a rule or standard for continued listing on the exchange or association. The company must disclose the date it received or provided the notice, the rule or standard for continued listing that the company fails or has failed to satisfy and any action or response that the company has determined to take relating to the notice. The company must make the disclosure even if the company has a grace period during which to cure the noncompliance that triggers the disclosure requirement. Disclosure is not required if the delisting relates to a redemption or retirement of the entire class of stock.

In addition, if a national securities exchange or association maintaining the principal listing for the company's equity securities issues a public reprimand letter or similar communication, in lieu of suspending trading or delisting such equity securities, with respect to the company violating a rule or standard of the exchange or association, then the company must state the date and summarize the contents of the letter or communication. Finally, if the company's board, a board committee or authorized officers of the company take definitive action to delist the company's equity securities from a national securities exchange or association maintaining the principal listing for the company's equity securities, then the company must describe the action and state the date of the action. This requirement includes action taken to transfer a listing to another securities exchange or quotation system.

Item 3.02 requires a company to disclose sales of its equity securities in a transaction that is not registered under the Securities Act of 1933 unless the aggregate amount of equity securities sold since the company's last periodic report or Form 8-K filed under this item is less than 1% of the company's outstanding securities of that class. The company must disclose the amount of securities sold, the consideration the company received, the exemption from registration under the Securities Act under which the securities were sold and, if applicable, the terms of conversion or exercise of the securities. Although the item speaks in terms of sales of equity securities, the disclosure obligation arises when the company enters into an enforceable agreement, whether or not subject to conditions, under which the equity securities are to be sold. However, if there is no such agreement, then the obligation arises after the closing or settlement of the transaction. Unregistered sales of equity securities that are below the 1% threshold will still be required to be disclosed in Item 2(c) of Part II of Form 10-Q or Item 5(a) of Form 10-K.

Item 3.03 requires a company to disclose material modifications to the rights of the holders of any class of its registered securities and to briefly describe the general effect of such modifications on such rights. The disclosure required by Item 3.03 is substantively the same as the disclosure previously required by current Items 2(a) and 2(b) of Part II of Form 10-Q.

Section 4 — Matters Related to Accountants and Financial Statements

Item 4.01 is substantively the same as current Item 4 of Form 8-K, which requires disclosure of the resignation, dismissal or engagement of an independent accountant.

Item 4.02 requires a company to file a Form 8-K if its board of directors, a board committee or an authorized officer concludes that any of the company's previously issued annual or interim financial statements no longer should be relied upon because of an error in such financial statements as addressed in Accounting Principles Board Opinion No. 20. The company must disclose the date the conclusion was reached, the financial statements and the years or periods covered that should no longer be relied upon, a brief description of the facts underlying the conclusion and whether the audit committee, the board of directors or the authorized officer discussed matters giving rise to the conclusion with the company's independent accountant.

A company must make similar disclosure if the company is advised by, or receives notice from, its independent accountant that disclosure should be made or action should be taken to prevent future reliance on a previously issued audit report or completed interim review related to previously issued financial statements. In such a case, the company must provide its independent accountant with a copy of the disclosure no later than the day the company files the Form 8-K with the SEC and request that the independent accountant furnish the company with a letter, addressed to the SEC, stating whether the accountant agrees with the company's disclosure. The company must file the letter as an exhibit to an amended Form 8-K within two business days of its receipt.

Section 5 — Corporate Governance and Management

Item 5.01 is substantively the same as current Item 1 of Form 8-K.

Item 5.02(a) expands the scope of current Item 6 of Form 8-K regarding the departure of directors. Current Item 6 required disclosure only if a director departed as a result of a disagreement, provided a letter to the company describing the disagreement and then requested that the company publicly disclose the matter. Item 5.02(a) now requires a company to file a Form 8-K if a director has resigned or refuses to stand for re-election due to a disagreement with the company, known to an executive officer of the company, on any matter relating to the company's operations, policies or practices, or has been removed for cause. The company must disclose the date of resignation, refusal to stand for re-election or removal, any board committee positions held by the director and a brief description of the circumstances surrounding the disagreement that management believes caused the departure. In addition, if the director furnishes the company with any written correspondence concerning the circumstances surrounding the director's departure, then the company must file a copy of the correspondence as an exhibit. The company must also provide the director with a copy of the disclosure it is making no later than the day the company files the disclosure with the SEC and provide the director with an opportunity to furnish the company a letter stating whether the director agrees with the company's disclosure. If the company receives such a letter from a director, then the company must file it as an exhibit to an amended Form 8-K within two business days of its receipt.

Item 5.02(b) requires a company to disclose the retirement, resignation or termination of the company's principal executive officer, president, principal financial officer, principal accounting officer, principal operating officer or any person performing any similar functions, and any director's resignation, refusal to stand for re-election or removal other than in circumstances covered by Item 5.02(a). The company must disclose the event and the date of its occurrence.

Item 5.02(c) requires a company to disclose the appointment of a new principal executive officer, president, principal financial officer, principal accounting officer, principal operating officer or any person performing any similar functions and disclose information of the type the company would have to disclose in its Form 10-K and proxy statement relating to the officer. The company must disclose the officer's name, position, date of appointment and positions held with the company and other principal occupations within the past five years, related party transactions between the company and the officer and a brief description of the material terms of any employment agreement between the company and the officer. The company may delay filing the Form 8-K until the day on which the company first makes a public announcement of such appointment. While the list of officers to which Item 5.02(b) and (c) refer does not include all persons in the definition of "executive officer" for Exchange Act purposes, an agreement with executive officers not on the list could trigger disclosure under Item 1.01.

Item 5.02(d) requires a company to disclose the election of a new director, unless such election is voted on by shareholders at a meeting called for such purpose. The company must disclose the director's name, a brief description of any arrangement or understanding pursuant to which the director was elected, any board committee to which the director has been, or at the time of disclosure is expected to be, appointed and related party transactions between the company and the director of the type the company would have to disclose in its proxy statement relating to the director.

Item 5.03 requires a company with a class of equity securities registered under Section 12 of the Exchange Act to disclose any amendment to its articles of incorporation or bylaws if the company did not propose the amendment in a previously filed proxy statement. The company must disclose the effective date of the amendment and describe the provision adopted or changed by the amendment and, if applicable, the previous provision. If a company reports an amendment on Form 8-K, then the only related exhibit the company needs to file is the text of the amendment. However, the company must file complete articles or bylaws as an exhibit to its next Form 10-Q or 10-K.

Item 5.03 also revises current Item 8 of Form 8-K to provide that if a company determines to change its fiscal year from that used in its most recent SEC filing other than by submission to a vote of shareholders, then the company must disclose the date of such determination, the date of the new fiscal year end and the form on which the report covering the transaction period will be filed.

Item 5.04 revises current Item 11 of Form 8-K, regarding a temporary suspension of trading under a company's employee benefit plans, to clarify that a company must file a Form 8-K no later than the fourth business day after it receives the notice of suspension of trading under the company's employee benefit plans under ERISA or, if the company receives no notice, on the same date that the company transmits a timely notice to directors and officers under Regulation BTR.

Item 5.05 is substantively the same as current Item 10 of Form 8-K, which requires disclosure of amendments to and waivers of a company's code of ethics governing principal executive and financial officers.

The SEC reserved Section 6 of Form 8-K for future use. Section 7 - Regulation FD, Item 7.01 Regulation FD Disclosure, Section 8 - Other Events, Item 8.01 Other Events, and Section 9 - Financial Statements and Exhibits, Item 9.01 Financial Statements and Exhibits, are substantively the same as current Items 9, 5 and 7, respectively, of Form 8-K. Thus, for purposes of satisfying Regulation FD disclosure obligations, companies that desire to "furnish" information on a Form 8-K will use new Item 7.01 instead of current Item 9, and companies that desire to "file" information on a Form 8-K will use new Item 8.01 instead of current Item 5.

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