[Federal Register Volume 69, Number 58 (Thursday, March 25, 2004)]
[Rules and Regulations]
[Pages 15594-15629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6332]



[[Page 15593]]

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Part VI





Securities and Exchange Commission





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17 CFR Parts 228, 229, et al.



Additional Form 8-K Disclosure Requirements and Acceleration of Filing 
Date; Final Rule

  Federal Register / Vol. 69, No. 58 / Thursday, March 25, 2004 / Rules 
and Regulations  

[[Page 15594]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 228, 229, 230, 239, 240 and 249

[Release Nos. 33-8400; 34-49424; File No. S7-22-02]
RIN 3235-AI47


Additional Form 8-K Disclosure Requirements and Acceleration of 
Filing Date

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are expanding the number of events that are reportable on 
Form 8-K under the Securities Exchange Act of 1934. These amendments 
add eight new items to the form, transfer two items from the periodic 
reports and expand disclosures under two existing Form 8-K items. Due 
to the increase in reportable events under the form, we are 
reorganizing the Form 8-K items into topical categories. The amendments 
also shorten the Form 8-K filing deadline for most items to four 
business days after the occurrence of an event triggering the 
disclosure requirements of the form. Finally, we are adopting a limited 
safe harbor from liability for failure to file certain of the required 
Form 8-K reports. These amendments are responsive to the ``real time 
issuer disclosure'' mandate in Section 409 of the Sarbanes-Oxley Act of 
2002. They are intended to provide investors with better and faster 
disclosure of important corporate events.

EFFECTIVE DATE: August 23, 2004.

FOR FURTHER INFORMATION CONTACT: Ray Be, Special Counsel, or Julie A. 
Bell, Special Counsel, each at (202) 942-2910, Division of Corporation 
Finance, U.S. Securities and Exchange Commission, 450 Fifth Street, 
NW., Washington, DC 20549-0312.

SUPPLEMENTARY INFORMATION: We are adopting amendments to Form 8-K,\1\ 
Form 10-K,\2\ Form 10-KSB,\3\ Form 10-Q,\4\ Form 10-QSB,\5\ Rule 12b-
23,\6\ Rule 13a-10,\7\ Rule 13a-11,\8\ Rule 15d-10,\9\ and Rule 15d-
11,\10\ under the Securities Exchange Act of 1934,\11\ Form S-2,\12\ 
Form S-3,\13\ and Rule 144 \14\ under the Securities Act of 1933,\15\ 
and Item 601 \16\ of Regulation S-B \17\ and Item 601 \18\ of 
Regulation S-K.\19\
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    \1\ 17 CFR 249.308.
    \2\ 17 CFR 249.310.
    \3\ 17 CFR 249.310b.
    \4\ 17 CFR 249.308a.
    \5\ 17 CFR 249.308b.
    \6\ 17 CFR 249.12b-23.
    \7\ 17 CFR 249.13a-10.
    \8\ 17 CFR 240.13a-11.
    \9\ 17 CFR 240.15d-10.
    \10\ 17 CFR 240.15d-11.
    \11\ 15 U.S.C. 78a et seq.
    \12\ 17 CFR 239.12.
    \13\ 17 CFR 239.13.
    \14\ 17 CFR 230.144.
    \15\ 15 U.S.C. 77a et seq.
    \16\ 17 CFR 228.601.
    \17\ 17 CFR 228.10 et seq.
    \18\ 17 CFR 229.601.
    \19\ 17 CFR 229.10 et seq.
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Table of Contents

I. Background
II. Discussion of Amendments
    A. Shortened Form 8-K Filing Deadline and Availability of Form 
12b-25
    B. Reorganization of Form 8-K Items
    C. Expansion of Form 8-K Items
    1. Item 1.01 Entry into a Material Definitive Agreement
    a. Filing of Exhibits
    b. Considerations Regarding Business Combinations
    2. Item 1.02 Termination of a Material Definitive Agreement
    3. Item 1.03 Bankruptcy or Receivership
    4. Item 2.01 Completion of Acquisition or Disposition of Assets
    5. Item 2.02 Results of Operations and Financial Condition
    6. Item 2.03 Creation of a Direct Financial Obligation or an 
Obligation Under an Off-Balance Sheet Arrangement of a Registrant
    7. Item 2.04 Triggering Events That Accelerate or Increase a 
Direct Financial Obligation or an Obligation under an Off-Balance 
Sheet Arrangement
    8. Item 2.05 Costs Associated with Exit or Disposal Activities
    9. Item 2.06 Material Impairments
    10. Item 3.01 Notice of Delisting or Failure to Satisfy a 
Continued Listing Rule or Standard; Transfer of Listing
    11. Item 3.02 Unregistered Sales of Equity Securities
    12. Item 3.03 Material Modifications to Rights of Security 
Holders
    13. Item 4.01 Changes in Registrant's Certifying Accountant
    14. Item 4.02 Non-Reliance on Previously Issued Financial 
Statements or a Related Audit Report or Completed Interim Review
    15. Item 5.01 Changes in Control of Registrant
    16. Item 5.02 Departure of Directors or Principal Officers; 
Election of Directors; Appointment of Principal Officers a. 
Disclosure under Item 5.02(a) when a director resigns or refuses to 
stand for re-election due to a disagreement or is removed for cause
    b. Disclosure under Item 5.02(b) when certain officers retire, 
resign or are terminated and disclosure when a director retires, 
resigns, is removed or refuses to stand for re-election for any 
reason other than as a result of a disagreement or for cause
    c. Disclosure under Item 5.02(c) and (d) when the registrant 
appoints certain new officers or a new director is elected
    17. Amendments to Articles of Incorporation or Bylaws; Change in 
Fiscal Year
    D. Proposed Form 8-K Items Not Being Adopted
    E. Safe Harbor and Eligibility to Use Forms S-2 and S-3 and to 
Rely on Rule 144
    F. Other Matters Related to Form 8-K Filings and Conforming 
Amendments
    1. Events Falling under Multiple Items
    2. Amendments to Item 601 of Regulation S-K and Regulation S-B
    3. Clarification of Filing Status of Exhibits
    4. Revisions to Forms 10-Q, 10-QSB, 10-K and 10-KSB
    5. Certification under Section 906 of the Sarbanes-Oxley Act of 
2002
    6. Other Conforming Amendments
III. Paperwork Reduction Act
IV. Costs and Benefits v. Effect on Efficiency, Competition and 
Capital Formation
VI. Final Regulatory Flexibility Analysis
VII. Statutory Basis and Text of Rule Amendments

I. Background

    On June 17, 2002, we proposed to increase the number of events 
required to be disclosed on Form 8-K.\20\ Form 8-K is the Exchange Act 
form for current reports. Prior to the amendments being adopted today, 
Form 8-K required disclosure regarding nine different specified 
events.\21\ At the time, the proposals would have increased the number 
of reportable events under the form to 22. The proposals also would 
have shortened the form's filing deadline from five business days or 15 
calendar days, depending on the particular event, to two business days 
with an automatic two business day extension upon a company's filing of 
a Form 12b-25. In response to these proposals, we received 
approximately 85 comment letters from various constituencies, including 
investors, issuers, accounting firms, law firms and associations 
representing the interests of such constituencies.
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    \20\ Release No. 33-8106 (June 17, 2002) [67 FR 42914].
    \21\ In addition, three additional items of the form provided 
for voluntary disclosure of other significant events of a company, 
the filing of financial statements and exhibits, and disclosure of 
information pursuant to Regulation FD [17 CFR 243.100 et seq.]
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    Under the previous Form 8-K regime, companies were required to 
report very few significant corporate events. The limited number of 
Form 8-K disclosure items permitted a public company to delay 
disclosure of many significant events until the due date for its next 
periodic report. During such a delay, the market was unable to 
assimilate such undisclosed information into the value of a company's 
securities. The revisions

[[Page 15595]]

that we adopt today will benefit markets by increasing the number of 
unquestionably or presumptively material events that must be disclosed 
currently. They will also provide investors with better and more timely 
disclosure of important corporate events.
    On July 29, 2002, Congress enacted the Sarbanes-Oxley Act of 
2002.\22\ Section 409 of this Act requires public companies to disclose 
``on a rapid and current basis'' material information regarding changes 
in a company's financial condition or operations as we, by rule, 
determine to be necessary or useful for the protection of investors and 
in the public interest. These amendments also further the goals of 
Section 409 of the Sarbanes-Oxley Act.
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    \22\ 15 U.S.C. 78m(l).
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    At the same time, we have taken into account a number of important 
comments on the proposals by adopting a modified version of the 
proposed Form 8-K amendments. We have addressed the commenters' concern 
regarding potential premature disclosure in a number of respects. We 
also have addressed the concerns raised by several commenters regarding 
the length of the Form 8-K filing period by extending it beyond the 
originally proposed two business day period and significantly reducing 
the amount of analysis required by the specific items of the form. Our 
general rules, however, prohibiting material omissions that make the 
contents of the disclosure misleading, of course, continue to 
apply.\23\ We have also taken into account the concerns expressed by 
commenters regarding the liabilities that could arise for failure to 
make current disclosure of some events in what are still tight 
timeframes. In response to these comments, we have replaced the 
proposed safe harbor that would have afforded protection from potential 
Exchange Act Section 13(a) or 15(d) liability stemming from a company's 
failure to file a required Form 8-K to instead afford protection from 
potential liability arising under Exchange Act Section 10(b) and Rule 
10b-5 thereunder.
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    \23\ See, for example, Exchange Act Rule 12b-20 [17 CFR 240.12b-
20].
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II. Discussion of Amendments

A. Shortened Form 8-K Filing Deadline and Availability of Form 12b-25

    The amendments to Form 8-K require issuers that are subject to the 
reporting requirements of Section 13(a) and Section 15(d) of the 
Exchange Act, other than foreign private issuers that file annual 
reports on Form 20-F \24\ or 40-F,\25\ to file required current reports 
on Form 8-K within four business days of a triggering event.\26\ These 
amendments do not affect the filing deadline for disclosures under 
Regulation FD (Item 7.01), voluntary disclosures (Item 8.01) and 
certain exhibits.
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    \24\ 17 CFR 249.220f.
    \25\ 17 CFR 249.240f.
    \26\ Instruction B.1. to Form 8-K.
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    In the proposing release, we proposed a two business day deadline 
for Form 8-K, with provision for an automatic two business day 
extension upon a company's filing of Form 12b-25. Thus, the proposals 
would have permitted a four business day filing period whenever a 
company filed a Form 12b-25.
    We received numerous comments and recommendations regarding 
appropriate filing deadlines.\27\ The comments ranged from support of 
the two business day deadline to recommendations of as much as ten 
business days. Similarly, we received mixed comments on the Form 12b-25 
proposal.\28\ Some commenters noted that the Form 12b-25 proposal would 
complicate the process and that increased filings would reduce the 
significance of a Form 12b-25 filing.\29\ We are persuaded by these 
commenters that modifications to the proposals are warranted. Thus, we 
are not adopting the proposal to extend the Form 8-K filing deadline 
via Form 12b-25. Rather, we are adopting a four business day deadline 
for Form 8-K, with no provision for extension under Rule 12b-25.\30\ We 
believe that this change addresses commenters' concerns regarding the 
sufficiency of the filing period and simplifies the logistics of filing 
the four business day period.
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    \27\ See, for example, the letters from American Institute of 
Certified Public Accountants (``AICPA''), City Bar of New York (``NY 
City Bar''), Deloitte & Touche, Dan Nguyen, Emerson Electric Co. 
(``Emerson''), Boeing Company (``Boeing''), Morgan Stanley and 
Perkins Coie.
    \28\ See, for example, the letters from the AICPA, KPMG, Cleary 
Gottlieb, Steen & Hamilton (``Cleary Gottlieb''), 
PriceWaterhouseCoopers (``PWC''), Intel Corporation (``Intel'') and 
Ronald Stauber.
    \29\ See the letters from Cleary Gottlieb and PWC.
    \30\ For example, if a reportable event occurred on a Wednesday, 
the Form 8-K filing deadline would typically be the following 
Tuesday.
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B. Reorganization of Form 8-K Items

    Because we are adding a number of new items to the form, we believe 
it is appropriate to organize the required reportable items into 
topical categories. Commenters generally supported such reorganization. 
The amendments organize the Form 8-K items under the following section 
headings and with the following new numbering system:

Section 1--Registrant's Business and Operations
    Item 1.01 Entry into a Material Definitive Agreement
    Item 1.02 Termination of a Material Definitive Agreement
    Item 1.03 Bankruptcy or Receivership
Section 2--Financial Information
    Item 2.01 Completion of Acquisition or Disposition of Assets
    Item 2.02 Results of Operations and Financial Condition
    Item 2.03 Creation of a Direct Financial Obligation or an 
Obligation under an Off-Balance Sheet Arrangement of a Registrant
    Item 2.04 Triggering Events That Accelerate or Increase a Direct 
Financial Obligation or an Obligation under an Off-Balance Sheet 
Arrangement
    Item 2.05 Costs Associated with Exit or Disposal Activities
    Item 2.06 Material Impairments
Section 3--Securities and Trading Markets
    Item 3.01 Notice of Delisting or Failure to Satisfy a Continued 
Listing Rule or Standard; Transfer of Listing
    Item 3.02 Unregistered Sales of Equity Securities
    Item 3.03 Material Modifications to Rights of Security Holders
Section 4--Matters Related to Accountants and Financial Statements
    Item 4.01 Changes in Registrant's Certifying Accountant
    Item 4.02 Non-Reliance on Previously Issued Financial Statements or 
a Related Audit Report or Completed Interim Review
Section 5--Corporate Governance and Management
    Item 5.01 Changes in Control of Registrant
    Item 5.02 Departure of Directors or Principal Officers; Election of 
Directors; Appointment of Principal Officers
    Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change 
in Fiscal Year
    Item 5.04 Temporary Suspension of Trading Under Registrant's 
Employee Benefit Plans
    Item 5.05 Amendments to the Registrant's Code of Ethics, or Waiver 
of a Provision of the Code of Ethics
Section 6--[Reserved]
Section 7--Regulation FD
    Item 7.01 Regulation FD Disclosure
Section 8--Other Events
    Item 8.01 Other Events
Section 9--Financial Statements and Exhibits

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    Item 9.01 Financial Statements and Exhibits

    This new numbering system avoids re-use of the former single-digit 
item numbering system previously used in Form 8-K to avoid confusion 
about the subject of particular items. For example, the Form 8-K item 
permitting voluntary disclosure of ``other events'' that was formerly 
designated as Item 5 now appears as Item 8.01. Thus, anyone searching 
the EDGAR database for such filings made before and after the change 
will need to search for both Items 5 and 8.01. In addition, a company 
amending a Form 8-K that it filed before the effective date of the 
rules we are adopting today must file the amendment using the form's 
new numbering system. For example, a company amending a Form 8-K 
previously filed under former Item 2, Acquisition or Disposition of 
Assets, to add the required financial statements must reference new 
Item 9.01, Financial Statements and Exhibits, when filing the 
amendment.

C. Expansion of Form 8-K Items

    We are adding eight new items to the list of events that require a 
company to file a current report on Form 8-K and transferring, in part, 
two items from the periodic reports.\31\ In addition, we are expanding 
two pre-existing Form 8-K items. Based on our review of Form 8-K 
filings, as well as public comment letters, we believe that these items 
represent events that unquestionably or presumptively have such 
significance that current disclosure should be required. These 
amendments will operate prospectively only.\32\ The following is a 
discussion of the individual items in the revised Form 8-K.
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    \31\ The two items which we have modified from existing 
disclosure requirements in periodic reports and included in Form 8-K 
are Item 3.02 Unregistered Sales of Equity Securities and Item 3.03 
Material Modifications to Rights of Security Holders, each of which 
previously was required to be reported pursuant to Forms 10-Q, 10-
QSB, 10-K and 10-KSB, as applicable. As discussed more fully below, 
however, we have retained in these applicable periodic reports a 
requirement to disclose any sales of unregistered equity securities 
that do not meet the numeric thresholds of the new Form 8-K item.
    \32\ However, certain subsequent events, such as a material 
amendment to a material definitive agreement, may trigger a 
disclosure requirement even though the initial entry into the 
material definitive agreement occurred prior to the effectiveness of 
these amendments.
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Section 1--Registrant's Business and Operations
Item 1.01 Entry Into a Material Definitive Agreement
    New Item 1.01 requires the disclosure of material definitive 
agreements entered into by a company that are not made in the ordinary 
course of business. The item parallels Items 601(b)(10) of Regulation 
S-K \33\ with regard to the types of agreements that are material to a 
company, a standard already familiar to reporting companies.\34\
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    \33\ Unless otherwise noted, throughout this release, where we 
refer to a particular item of Regulation S-K, we also refer to, and 
include, the comparable item under Regulation S-B.
    \34\ See Instruction 1 to Item 1.01.
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    Under Item 1.01, a company must also disclose any material 
amendment to a material definitive agreement. Disclosure of a material 
amendment may be required under Item 1.01 even if the underlying 
agreement previously has not been disclosed by the company. This could 
occur if, for example, the agreement was entered into prior to the 
effective date of this Item 1.01, or the amendment results in the 
agreement becoming a material definitive agreement of the company.
    A company must disclose the following information upon entry into, 
or material amendment of, a material definitive agreement:
     The date on which the agreement was entered into 
or amended, the identity of the parties to the agreement and a brief 
description of any material relationship between the company or its 
affiliates and any of the parties, other than in respect of the 
material definitive agreement or amendment; and
     A brief description of the terms and conditions 
of the agreement or amendment that are material to the company.
    We received substantial comment on this item at the proposing 
stage. In particular, many commenters opposed our proposal to require 
disclosure of letters of intent and other non-binding agreements in 
addition to disclosure of definitive agreements that are material to 
the company.\35\ They noted that disclosure of non-binding agreements 
could cause significant competitive harm to the company and create 
excessive speculation in the market.\36\ Several companies also stated 
that they use letters of intent extensively, but that few such letters 
culminate in a completed transaction.\37\
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    \35\ See, for example, the letters of the AICPA, American Bar 
Association, Section of Business Law (``ABA''), NY City Bar, Cleary 
Gottlieb, Financial Executives International (``FEI''), Intel and 
Morgan Stanley.
    \36\ See, for example, the letters of Compass Bancshares, Inc. 
(``Compass Bancshares''), NY City Bar and Hogan & Hartson.
    \37\ Many of these companies were real estate investment trusts. 
See, for example, the letter from the National Association of Real 
Estate Investment Trusts (``NAREIT'').
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    In response to the commenters, we eliminated the requirement that 
companies disclose their entry into non-binding agreements from this 
item.\38\ We have further replaced the proposed definition of 
``agreement'' with a definition of ``material definitive agreement'' 
and have moved this definition from a proposed instruction into Item 
1.01(b). We have clarified that only agreements which provide for 
obligations that are material to and enforceable against a company, or 
rights that are material to the company and enforceable by the company 
against one or more other parties to the agreement by the company, are 
required to be disclosed pursuant to Item 1.01, regardless of whether 
the material definitive agreement is enforceable subject to stated 
conditions.\39\
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    \38\ We note, however, that there may be instances under our 
other rules and regulations or applicable case law in which a 
company would be required to disclose such non-binding agreements, 
notwithstanding the absence of a Form 8-K requirement.
    \39\ Thus, for example, a material definitive agreement which is 
subject to customary closing conditions, such as the delivery of 
legal opinions or comfort letters, completion of due diligence or 
regulatory approval, must be disclosed under Item 1.01 when such 
agreement is enforceable against or by the company despite the fact 
that such conditions have not yet been satisfied. However, if a 
company enters into a non-binding letter of intent or memorandum of 
understanding that also contains some binding, but non-material 
elements, such as a confidentiality agreement or a no-shop 
agreement, the letter or memorandum does not need to be filed 
because the binding provisions are not material.
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    We have also eliminated the specific requirements to disclose each 
party's rights and obligations under the material definitive agreement 
and the duration and termination provisions of the agreement. To the 
extent that any of these provisions is material to the company, it must 
be briefly described under paragraph (a)(2) of the item.
Filing of Exhibits
    The proposals would have required a company to file a material 
agreement required to be disclosed under Item 1.01 as an exhibit to its 
Form 8-K. We received numerous comments on this proposal. A primary 
concern of commenters was that companies would not always be able to 
prepare and submit requests for confidential treatment of sensitive 
terms of the agreement within the short Form 8-K filing period.\40\ 
They recommended several alternatives, including streamlined treatment 
of such requests, such as by creating a short-form confidential 
treatment request process,\41\ and delaying the company's obligation to 
file the exhibit until it files

[[Page 15597]]

its next periodic report.\42\ In addition, some commenters were 
concerned that the process of preparing to submit such lengthy 
documents in proper EDGAR format would hinder the ability of a company 
to report the event promptly.
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    \40\ See, for example, the letters from the ABA, NY City Bar and 
FEI.
    \41\ See the letter from the NY City Bar.
    \42\ See, for example, the letters from the AICPA, Compass 
Bancshares and Sullivan & Cromwell.
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    In response to these comments, we have eliminated the proposed 
requirement to file the material agreement as a Form 8-K exhibit. Prior 
to these amendments, material agreements did not need to be filed until 
the company's next periodic report as there was no Form 8-K item 
requiring disclosure of the event. Thus, the amendments do not change 
current requirements with regard to filing material agreements as 
exhibits, nor do they affect the process for requesting confidential 
treatment of terms of those agreements. Given the initial disclosure of 
the agreement and its material terms, delayed filing of the exhibit 
should have minimal effect on the utility of the Item 1.01 disclosure. 
Pursuant to amended Item 601 of Regulation S-K, a company will have to 
file such agreement as an exhibit to the company's next periodic report 
or registration statement.\43\ However, we encourage companies to file 
the exhibit with the Form 8-K when feasible, particularly when no 
confidential treatment is requested.
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    \43\ See General Instruction B.4 to Form 8-K.
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Considerations Regarding Business Combinations
    New Item 1.01 requires disclosure of all material definitive 
agreements specified by the item, including business combination 
agreements and other agreements that relate to extraordinary corporate 
transactions. The filing of the Form 8-K may constitute the first 
``public announcement'' for purposes of Rule 165 \44\ under the 
Securities Act and Rule 14d-2(b)\45\ or Rule 14a-12 \46\ under the 
Exchange Act \47\ and thereby trigger a filing obligation under those 
rules.
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    \44\ 17 CFR 230.165.
    \45\ 17 CFR 240.14d-2(b).
    \46\ 17 CFR 240.14a-12.
    \47\ Rule 165 provides an exemption from Section 5 of the 
Securities Act for communications relating to the business 
combination made before the filing of a registration statement in 
connection with that business combination if all written 
communications are filed under Securities Act Rule 425 [17 CFR 
230.425]. Rule 14d-2(b) allows communications by the bidder before 
the commencement of the tender offer provided that all written 
communications are filed. Rule 14a-12 allows solicitations to be 
made before a proxy statement meeting the requirements of Rule 14a-
3(a) [17 CFR 240.14a-3(a)] is furnished to security holders if the 
written solicitations are filed.
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    In the proposing release, we solicited comment on whether Form 8-K 
should include boxes on the cover page to enable the filer to indicate 
that the Form 8-K filing also satisfies a separate filing obligation 
under Rule 165, Rule 14d-2(b) and/or 14a-12.\48\ We received favorable 
comments on this issue.\49\ Thus, to avoid duplicative filings, we are 
amending Form 8-K to enable a company to check one or more boxes on the 
cover page to indicate that it is simultaneously satisfying its filing 
obligations under these rules, provided that the Form 8-K contains all 
of the information required by those rules.\50\
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    \48\ The Form 8-K filing must generally include the substantive 
information and legends required by those rules. The appropriate 
EDGAR tag (specifically, ``425,'' ``TO-C'' or ``DEFA14A'') also will 
be necessary. An interpretation of the Division of Corporation 
Finance (see Q&A No. I.B.13, Manual of Publicly Available Telephone 
Interpretations, Third Supplement, July 2001) stated that a company 
that files information regarding a business combination on Form 8-K 
may be required to make a separate filing under Rule 425 [17 CFR 
230.425]. As of the August 23, 2004 compliance date for these 
amendments, a separate filing no longer will be necessary if the 
company indicates on the cover of its Form 8-K report that the 
filing is intended to satisfy the requirements of Rule 425.
    \49\ See, for example, the letters from the ABA, NY City Bar, 
Compass Bancshares, and Sullivan & Cromwell.
    \50\ As Instruction A.2 to the Form 8-K indicates, however, 
because the information required by Rule 425(c) would otherwise be 
present in a Form 8-K report, such information need not be placed in 
the location specified by Rule 425(c).
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Item 1.02 Termination of a Material Definitive Agreement
    We are adopting a new Form 8-K item requiring disclosure if a 
material definitive agreement not made in the ordinary course of 
business to which a company is a party is terminated, other than by 
expiration of the agreement on a stated termination date or as a result 
of all parties completing their obligations under such agreement, and 
such termination of the agreement is material to the company. In such 
an event, the company must disclose the following information:
     The date of the termination of the material 
definitive agreement, the identity of the parties to the agreement and 
a brief description of any material relationship between the company or 
its affiliates and any of the parties other than in respect of the 
material definitive agreement;
     A brief description of the terms and conditions 
of the agreement that are material to the company;
     A brief description of the material 
circumstances surrounding the termination; and
     Any material early termination penalties 
incurred by the company.\51\
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    \51\ Disclosure of the termination of a material definitive 
agreement may be required under this item even if the agreement was 
not disclosed previously because, for example, the agreement was 
entered into prior to effectiveness of Item 1.01.
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    Several commenters believed that an agreement that terminates ``by 
its terms'' should not trigger disclosure.\52\ We have addressed these 
concerns by excluding termination as a result of expiration of the 
agreement on its stated termination date or as a result of completion 
by all parties of their obligations.
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    \52\ See, for example, the letters from CIGNA Corporation 
(``CIGNA''), Cleary Gottlieb, John Deere Co. (``John Deere'') and 
Shearman & Sterling.
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    Commenters also were concerned that one party to an agreement may 
use this item as a negotiation tool to induce another party to the 
agreement to modify the agreement on terms more favorable to the first 
party, or else potentially suffer a negative market reaction to 
disclosure about termination of the agreement.\53\ We believe these 
comments are addressed by Instruction 1 to Item 1.02 which states that 
no disclosure is required under the item during negotiations or 
discussions regarding termination of a material definitive agreement 
unless and until the agreement has been terminated.
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    \53\ See, for example, the letters from Boeing, Intel, NY City 
Bar and Sullivan & Cromwell.
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    In addition, in response to commenters' concerns, we have further 
clarified in Instruction 2 to Item 1.02 that no disclosure is required 
under the item if the company believes, in good faith, that the 
agreement has not been terminated, unless the company has received a 
notice of termination pursuant to the terms of the agreement. If a 
company believes in good faith that a material definitive agreement has 
not been terminated, but determines nevertheless to make disclosure 
under Item 1.02, the company could disclose under this item a statement 
of its good faith belief as to any relevant matter, including, for 
example, that not all conditions to termination have been satisfied or 
that a termination has otherwise not occurred. In such event, an 
amendment \54\ under this Item 1.02 may be required if the company's 
conclusion as to termination changes due to a loss of, or change in, 
its good faith belief.
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    \54\ In such event, the company will have to amend the Form 8-K 
to provide this updated information within four business days from 
the date that conclusion changes.
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    Other commenters were concerned about the proposed requirement to 
disclose management's analysis of the effect of the termination, which 
some referred to as a ``mini-MD&A.'' \55\ We

[[Page 15598]]

agree with the commenters that in some cases such analysis may be 
difficult to provide within the abbreviated Form 8-K filing period and 
may be more relevant and complete when discussed in the context of full 
financial statements. Thus, we have removed this proposed requirement 
from specific required terms of the final rule. Nevertheless, any 
disclosure made in a report on Form 8-K must include all other material 
information, if any, that is necessary to make the required disclosure, 
in the light of the circumstances under which it is made, not 
misleading.\56\
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    \55\ These commenters likened the proposed analysis to Item 303 
of Regulation S-K, which requires a company to include an MD&A 
section in periodic filings and registration statements containing 
financial statements. See the letter from Joseph Grundfest and seven 
Silicon Valley law firms (``Grundfest Group''), as well as the 
letters from the ABA, NY City Bar, and NAREIT.
    \56\ See Rule 12b-20 under the Exchange Act, as well as Exchange 
Act Section 10(b) [15 U.S.C. 78j(b)] and Rule 10b-5 [17 CFR 240.10b-
5] thereunder.
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Item 1.03 Bankruptcy or Receivership
    This item retains the basic substantive requirements formerly 
included in Item 3 of Form 8-K regarding a company's entry into 
bankruptcy or receivership. As proposed, however, we are adopting minor 
changes to make the item more readable, such as breaking out embedded 
lists from the text and moving some language currently included in the 
text into an instruction to the item.
Section 2--Financial Information
Item 2.01 Completion of Acquisition or Disposition of Assets
    This item retains most of the substantive requirements included in 
former Item 2 of Form 8-K. It requires disclosure if a company, or any 
of its majority-owned subsidiaries, has acquired or disposed of a 
significant amount of assets, otherwise than in the ordinary course of 
business.
    We recognize that there will frequently be a relationship between 
the disclosure provided under this item and the disclosure required by 
new Item 1.01, ``Entry into a Material Definitive Agreement.'' 
Typically, 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 as Item 2.01 includes a bright-line reporting threshold that is 
not included in Item 1.01. Under this threshold, a company need only 
report a completed acquisition or disposition of assets if the 
transaction meets the significant asset test as set forth in the 
item.\57\
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    \57\ This test is the same as the test in former Item 2 of Form 
8-K. It states that an acquisition or disposition is deemed 
significant if (1) the company's and its other subsidiaries' equity 
in the net book value of the assets or the amount paid or received 
for the assets exceeded 10% of the total assets of the company and 
its consolidated subsidiaries, or (2) the transaction involved a 
business that is significant under Regulation S-X.
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    We received several comments recommending harmonization between the 
reporting thresholds in Items 1.01 and 2.01.\58\ It is our intention, 
however, that Item 1.01 address a different scope of agreements than 
those that will trigger disclosure under Item 2.01, which only applies 
to the acquisition or disposition of assets. We believe that the use of 
two different thresholds for these items will not cause undue 
confusion. Indeed, both items use existing thresholds, one from Item 
601 of Regulation S-K, the other from former Item 2 of Form 8-K.
---------------------------------------------------------------------------

    \58\ See the letters from Compass Bancshares, Kellogg, the New 
York State Bar Association (``NY State Bar''), Shearman & Sterling 
and Sullivan & Cromwell.
---------------------------------------------------------------------------

    Several commenters believed that the disclosure requirements 
regarding the source of funding for an acquisition typically have not 
produced meaningful disclosure and should be limited to instances where 
a material relationship exists between the company and the source of 
the funding.\59\ They suggested adding the same type of limitation 
regarding the disclosure that a company must provide about the formula 
or principle followed in determining the amount of the consideration 
involved in the acquisition or disposition. We agree with those 
commenters and have limited those disclosure requirements to instances 
in which such a relationship is present.
---------------------------------------------------------------------------

    \59\ See the letters from the NY State Bar and Sullivan & 
Cromwell.
---------------------------------------------------------------------------

    As proposed, this item requires the same basic disclosure formerly 
required by Item 2 of Form 8-K, except that disclosure no longer is 
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, while we proposed revision of the 
disclosure regarding the source of funds used to effect a change in 
control, we believe that Congress intended for certain procedures to be 
present with regard to the disclosure of the identity of a bank 
involved in such a transaction when the bank is loaning funds in the 
ordinary course of its business.\60\ Thus, we are not adopting the 
proposed changes to this aspect of the item.
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    \60\ See 15 U.S.C. 13(d)(1)(B).
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Item 2.02 Results of Operations and Financial Condition
    We have retained in new Item 2.02 all of the substantive 
requirements of former 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.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation 
Under an Off-Balance Sheet Arrangement of a Registrant
    This new item requires disclosure of the following information if 
the company becomes obligated under a direct financial obligation that 
is material to the company:
     The date on which the company becomes obligated 
on the direct financial obligation and a brief description of the 
transaction or agreement creating the obligation;
     The amount of the obligation, including the 
terms of its payment and, if applicable, a brief description of the 
material terms under which it may be accelerated or increased and the 
nature of any recourse provisions that would enable the company to 
recover from third parties; and
     A brief description of the other terms and 
conditions of the transaction or agreement that are material to the 
company.
    In addition, if the company becomes directly or contingently liable 
for an obligation that is material to the company arising out of an 
off-balance sheet arrangement, it must provide the following 
information:
     The date on which the company becomes directly 
or contingently liable on the obligation and a brief description of the 
transaction or agreement creating the arrangement and obligation;
     A brief description of the nature and amount of 
the obligation of the company under the arrangement, including the 
material terms under which it may become a direct obligation, if 
applicable, or may be accelerated or increased and the nature of any 
recourse provisions that would enable the company to recover from third 
parties;
     The maximum potential amount of future payments 
(undiscounted) that the company may be required to make, if different; 
\61\ and
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    \61\ Instruction 4 to Item 2.03 provides that the maximum amount 
of future payments may not be reduced by the effect of any amounts 
that may possibly be recovered by a company under recourse or 
collateralization provisions in any guarantee agreement, transaction 
or arrangement.

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[[Page 15599]]

     A brief description of the other terms and 
conditions of the obligation or arrangement that are material to the 
company.\62\
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    \62\ See generally Financial Accounting Standards Board (FASB) 
Interpretation No. 45, Guarantor's Accounting and Disclosure 
Requirements for Guarantees, Including Indirect Guarantees and 
Indebtedness of Others.
---------------------------------------------------------------------------

    The item defines a ``direct financial obligation'' as any of the 
following:
     A long-term debt obligation, as defined in Item 
303(a)(5)(ii)(A) of Regulation S-K (17 CFR 229.303(a)(5)(ii)(A));
     A capital lease obligation, as defined in Item 
303(a)(5)(ii)(B) of Regulation S-K (17 CFR 229.303(a)(5)(ii)(B));
     An operating lease obligation, as defined in 
Item 303(a)(5)(ii)(C) of Regulation S-K (17 CFR 229.303(a)(5)(ii)(C)); 
or
     A short-term debt obligation that arises other 
than in the ordinary course of business.
    The item refers to Item 303(a)(4)(ii) of Regulation S-K for the 
definition of the term ``off-balance sheet arrangement.'' \63\ It also 
defines the term ``short-term debt obligation'' as a payment obligation 
under a borrowing arrangement that is scheduled to mature within one 
year, or, for those companies that use the operating cycle concept of 
working capital, within a company's operating cycle that is longer than 
one year, as discussed in Accounting Research Bulletin No. 43, Chapter 
3A, Working Capital.\64\
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    \63\ See paragraph (d) of Item 2.03 of Form 8-K.
    \64\ This definition is comparable to the definition of ``short 
term obligation'' in Statement of Financial Accounting Standards No. 
6 (SFAS No. 6), Classification of Short-Term Obligations Expected to 
Be Refinanced. SFAS No. 6 defines ``short term obligation'' as those 
obligations that are scheduled to mature within one year after the 
date of an enterprise's balance sheet or, for those enterprises that 
use the operating cycle concept of working capital, within an 
enterprise's operating cycle that is longer than one year.
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    This new item also contains an instruction clarifying that a 
company need not file a report under this Item 2.03 until the company 
enters into an agreement enforceable against it, whether or not subject 
to conditions, under which the direct financial obligation will arise 
or be created or issued. If there is no such agreement, the company 
must provide the disclosure within four business days after the 
occurrence of the closing or settlement of the transaction or 
arrangement under which the direct financial obligation arises or is 
created.\65\
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    \65\ See Instruction 1 to Item 2.03 of Form 8-K.
---------------------------------------------------------------------------

    Another instruction clarifies that a company must provide the 
disclosure required regarding off-balance sheet arrangements, whether 
or not the company is also a party to the transaction or agreement 
creating the contingent obligation arising under the off-balance sheet 
arrangement.\66\ In the event that neither the company nor any 
affiliate of the company is also a party to the transaction or 
agreement creating the contingent obligation arising under the off-
balance arrangement in question, the four business day period for 
reporting the event under this Item 2.03 would begin on the earlier of 
(i) the fourth business day after the contingent obligation is created 
or arises, and (ii) the day on which an executive officer \67\ of the 
company becomes aware of the contingent obligation.\68\
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    \66\ For example, assume Company A enters into an agreement with 
Bank B pursuant to which Company A agrees with Bank B that Company 
C, an unconsolidated subsidiary of Company A, will maintain equity 
of at least $1. Six months later, Company C borrows $100 million 
from Bank B. Three months later, Company C defaults on its debt 
obligation to Bank B. In this fact pattern, upon entering into the 
initial agreement with Bank B, Company A would generally have no 
disclosure requirement under Item 2.03 on Form 8-K. However, when 
Company C borrows $100 million from Bank B, Company A will be 
required to file a Form 8-K under Item 2.03 as Company A has become 
contingently liable for an obligation arising out of an off-balance 
sheet arrangement, assuming such contingent obligation is material 
to Company A. Upon Company C's default on it debt obligation to Bank 
B, a further Form 8-K filing obligation will be required under Item 
2.04, as discussed below, as a contingent obligation of Company A 
has become a direct financial obligation, assuming such direct 
financial obligation is material to Company A.
    \67\ The term ``executive officer'' is defined in Exchange Act 
Rule 3b-7 (17 CFR 240.3b-7).
    \68\ See Instruction 2 to Item 2.03 of Form 8-K.
---------------------------------------------------------------------------

    The third instruction clarifies that if the company enters into a 
facility, program or similar arrangement that creates or may give rise 
to direct financial obligations in connection with multiple 
transactions, the company must disclose the entering into of the 
facility, program or similar arrangement, and disclose its obligations, 
to the extent the obligations are material, as they arise or are 
created under the facility or program (including when a series of 
previously undisclosed individually immaterial obligations become 
material in the aggregate).\69\
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    \69\ See Instruction 3 to Item 2.03 of Form 8-K.
---------------------------------------------------------------------------

    A final instruction \70\ provides that if the obligation required 
to be disclosed under this Item 2.03 is a security, or a term of a 
security, that has been or will be sold pursuant to an effective 
registration statement of the company, the company is not required to 
file a Form 8-K pursuant to the item, provided that the prospectus 
relating to the sale contains the information required by this item and 
is filed within the required time period under Securities Act Rule 
424.\71\
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    \70\ See Instruction 5 to Item 2.03 of Form 8-K.
    \71\ 17 CFR 230.424.
---------------------------------------------------------------------------

    We received numerous comments on this item. Many commenters 
requested clarification regarding the scope of obligations covered by 
this item.\72\ Since we proposed the amendments, we have adopted new 
rules requiring a company to provide disclosure about its off-balance 
sheet arrangements.\73\ Those rules define the term ``off-balance sheet 
arrangement.'' Because these are the types of contingent obligations 
about which Item 2.03 seeks disclosure, new Item 2.03 incorporates the 
definition of ``off-balance sheet arrangement'' used in Item 
303(a)(4)(ii) of Regulation S-K.
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    \72\ See, for example, the letters from the ABA, Emerson, Intel, 
NY State Bar and Sullivan & Cromwell.
    \73\ Release No. 33-8182 (January 28, 2003) (68 FR 5982).
---------------------------------------------------------------------------

    The new off-balance sheet arrangement disclosure rules also require 
disclosure of certain direct financial obligations in tabular form. We 
have revised the definition of ``direct financial obligation'' to refer 
to much of the same accounting literature used in these rules. We 
believe this approach will encourage consistency and reduce confusion 
regarding the scope of this item.
Item 2.04 Triggering Events That Accelerate or Increase a Direct 
Financial Obligation or an Obligation Under an Off-Balance Sheet 
Arrangement.
    This new item requires a company to file a Form 8-K report 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. In such case, the company must 
provide the following information:
     The date of the triggering event and a brief 
description of the agreement or transaction under which the direct 
financial obligation was created and is increased or accelerated;
     A brief description of the triggering event;
     The amount of the direct financial obligation, 
as increased if applicable, and 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.
    Also, if a triggering event occurs causing a company's obligation 
under

[[Page 15600]]

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 such event are material to the company, it must 
disclose the following information:
     The date of the triggering event and a brief 
description of the off-balance sheet arrangement;
     A brief description of the triggering event;
     The nature and amount of the obligation, as 
increased if applicable, and 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.
    Item 2.04 defines the term ``direct financial obligation'' by 
reference to the definition provided in Item 2.03, but adds for 
purposes of Item 2.04 that such term includes an obligation arising out 
of an off-balance sheet arrangement that is accrued under the FASB 
Statement of Financial Accounting Standards No. 5, Accounting for 
Contingencies \74\ (SFAS No. 5) as a probable loss contingency. ``Off-
balance sheet arrangement'' is defined by reference to the definition 
provided in Item 2.03.\75\ Finally, Item 2.04(e) defines the term 
``triggering event'' as an event, including an event of default, event 
of acceleration or similar event, as a result of which a direct 
financial obligation of the company or an obligation of the company 
arising under an off-balance sheet arrangement is increased or becomes 
accelerated or as a result of which a contingent obligation of the 
company arising out of an off-balance sheet arrangement becomes a 
direct financial obligation of the company.
---------------------------------------------------------------------------

    \74\ 74 See Item 2.04(c).
    \75\ 75 See Item 2.04(d).
---------------------------------------------------------------------------

    We have added four instructions to this item. Similar to Item 2.03, 
the first instruction clarifies that disclosure is required if a 
triggering event occurs in respect of the company's obligation under an 
off-balance sheet arrangement and the consequences are material to the 
company, whether or not the company is also a party to the transaction 
or agreement under which the triggering event occurs.\76\ The second 
instruction states that no disclosure is required unless and until a 
triggering event has occurred in accordance with the terms of the 
relevant agreement, transaction or arrangement, including, if required, 
the sending to the company of notice of the occurrence of a triggering 
event pursuant to the terms of the agreement, transaction or 
arrangement and the satisfaction of all conditions to such occurrence, 
except the passage of time.
---------------------------------------------------------------------------

    \76\ See, for example, note 66 above.
---------------------------------------------------------------------------

    The third instruction provides that, similar to new Item 1.02 of 
Form 8-K, no disclosure is required if the company believes, in good 
faith, that no triggering event has occurred, unless the company has 
received a notice as described in Instruction 2 to Item 2.04. Similar 
to Item 1.02, a company may wish to disclose under this Item 2.04 a 
statement of its good faith belief as to any relevant matter, 
including, for example, that not all conditions to occurrence of a 
triggering event have been satisfied or that a triggering event 
otherwise has not occurred. In such event, an amendment under this Item 
2.04 may be required if the company's conclusion as to the triggering 
event changes due to a loss of, or change in, its good faith.\77\
---------------------------------------------------------------------------

    \77\ In such event, the company would have to amend the Form 8-K 
to provide this updated information within four business days from 
the date that its conclusion changes.
---------------------------------------------------------------------------

    Finally, Instruction 4 to Item 2.04 explains that, if a company is 
subject to an obligation arising out of an off-balance sheet 
arrangement, whether or not disclosed pursuant to Item 2.03, if a 
triggering event occurs as a result of which under that obligation an 
accrual for a probable loss is required under SFAS No. 5, the 
obligation arising out of the off-balance sheet arrangement becomes a 
direct financial obligation for purposes of Item 2.04. In this 
situation, if the consequences as determined under Item 2.04(b) are 
material to the company, disclosure is required under Item 2.04.

    Similar to those who objected to the proposed analysis provision in 
Item 1.02, one commenter opposed requiring disclosure of management's 
analysis of the effect of the triggering event on the company.\78\ 
Again, we agree that it is appropriate to delete this requirement as a 
specific term of this Form 8-K item. We once again, however, remind 
companies that any disclosure made in a report on Form 8-K must include 
all other material information, if any, that is necessary to make the 
required disclosure, in the light of the circumstances under which it 
is made, not misleading.\79\
---------------------------------------------------------------------------

    \78\ See the letter from the ABA.
    \79\ See Rule 12b-20 under the Exchange Act, as well as Exchange 
Act Section 10(b) and Rule 10b-5 thereunder.
---------------------------------------------------------------------------

Item 2.05 Costs Associated With Exit or Disposal Activities
    This new item requires disclosure when the board of directors, a 
committee of the board of directors, or an authorized officer or 
officers if board action is not required, commits the company to an 
exit or disposal plan or otherwise disposes of a long-lived asset or 
terminates employees under a plan of termination described in paragraph 
8 of FASB Statement of Financial Accounting Standards No. 146 
Accounting for Costs Associated with Exit or Disposal Activities (SFAS 
No. 146), under which material charges will be incurred under generally 
accepted accounting principles applicable to the company. The item 
requires a company to disclose:
     The date of the commitment to the course of 
action and a description of the course of action, including the facts 
and circumstances leading to the expected action and the expected 
completion date;
     For each major type of cost associated with the 
course of action (for example, one-time termination benefits, contract 
termination costs and other associated costs), an estimate of the total 
amount or range of amounts expected to be incurred in connection 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 at the time of filing the company is unable to make a good faith 
estimate of the amount of the charges, it need not disclose an estimate 
at that time, but must nevertheless file the Form 8-K report describing 
the company's commitment to a course of action under which it will 
incur a material charge. Within four business days after the company 
formulates an estimate, the company must amend its earlier Form 8-K 
filing to include the estimate.
    We initially proposed that disclosure under Item 2.05 would have 
been triggered upon a ``definitive'' commitment of the company to a 
course of action. We have eliminated the term ``definitive'' because we 
believe that the tem ``commitment'' by itself adequately conveys the 
idea that a company has

[[Page 15601]]

made a final determination regarding a course of action.
    A number of commenters opposed this item. They noted that such 
events can occur over time, making it difficult to determine the exact 
date of the triggering event.\80\ They suggested that it would be more 
appropriate for this type of disclosure to appear in a company's 
periodic reports. We believe that it is important for investors to 
receive this information on a current basis and that, by tying the Form 
8-K filing requirement to the board's, committee's or officers' 
determination, the timing of the disclosure is sufficiently precise.
---------------------------------------------------------------------------

    \80\ See the letters from the New York State Society of 
Certified Public Accountants (``NYSSCPA'') and Radin, Glass & Co. 
(``Radin Glass'').
---------------------------------------------------------------------------

    One commenter believed that a discussion of a single piece of 
financial information outside of the context of the complete financial 
statements would be difficult and potentially misleading.\81\ 
Nonetheless, we believe that the occurrence of these events are 
important to investors making investment decisions. Others noted that a 
company often may not have estimated of the relevant charges at the 
time the plan is adopted.\82\ We acknowledge this possibility and thus 
have revised the item to permit later disclosure of such estimates 
within four business days after they are determined.
---------------------------------------------------------------------------

    \81\ See the letter from Shearman & Sterling.
    \82\ See the letters from the AICPA, Cleary Gottlieb, Deloitte & 
Touche and FPL Group, Inc. (``FPL Group'').
---------------------------------------------------------------------------

    Other commenters noted that, since we proposed this item, FASB has 
issued SFAS No. 146 which changed previous requirements regarding the 
timing of recognition of costs associated with exit or disposal 
activities.\83\ SFAS No. 146, however, also requires disclosure of such 
events, prior to recognition, similar to that required in this 
item.\84\ We have revised the disclosure requirements to more closely 
track the disclosures required in the footnotes to the financial 
statements required by SFAS No. 146. Thus, we do not believe that this 
item is inconsistent with current accounting literature, particularly 
in light of the added flexibility we have granted with regard to 
estimates.
---------------------------------------------------------------------------

    \83\ See the letters from the AICPA, Compass Bancshares, FEI, 
Intel and PWC.
    \84\ Paragraph 20 of SFAS No. 146 requires companies to disclose 
specified information in the notes to financial statements to 
periodic reports covering periods in which an exit or disposal 
activity is initiated. Paragraph 21 of SFAS No. 146 states that an 
exit or disposal activity is initiated when management, having the 
authority to approve the action, commits to an exit or disposal plan 
or otherwise disposes of a long-lived asset.
---------------------------------------------------------------------------

    Commenters were also concerned about the requirement that 
management provide an analysis, or ``mini-MD&A,'' of the effect of this 
event on the company.\85\ Consistent with similar revisions that we 
have made to Items 1.02 and 2.04, we have eliminated this specific 
disclosure provision from the Item 2.05 disclosure requirements. Once 
again, we remind companies that any disclosure made in a report on Form 
8-K must include all other material information, if any, that is 
necessary to make the required disclosure, in the light of the 
circumstances under which it is made, not misleading.\86\
---------------------------------------------------------------------------

    \85\ See the letters from the FPL Group, PWC and Radin Glass.
    \86\ See Exchange Act Section 10(b) and Rule 10b-5 as well as 
Rule 12b-20 under the Exchange Act.
---------------------------------------------------------------------------

    Finally, commenters recommended that we not use the terms ``write-
off'' or ``restructuring'' in Item 2.05 as such terms are not defined 
in the accounting literature.\87\ We have revised the title and 
references in the item to reflect these comments and use terminology 
consistent with those used in the accounting literature.
---------------------------------------------------------------------------

    \87\ See the letters from Ernst & Young and KPMG.
---------------------------------------------------------------------------

Item 2.06 Material Impairments
    This new item requires disclosure when a company's board of 
directors, a committee of the board of directors, or an authorized 
officer or officers if the company, if board action is not required, 
concludes that a material charge for impairment to one or more of its 
assets, including, without limitation, an impairment of securities or 
goodwill, is required under generally accepted accounting principles 
applicable to the company. Specifically, the company must:
     Disclose the date of the conclusion that a 
material charge is required and describe the impaired asset or assets 
and the facts and circumstances leading to the conclusion that the 
charge for impairment is required;
     Disclose the company's estimate of the amount or 
range of amounts of the impairment charge; and
     Disclose the company's estimate of the amount or 
range of amounts of the impairment charge that will result in future 
cash expenditures.
    Comments on this item paralleled those on Item 2.05. We have made 
similar revisions to this item in response by providing greater 
flexibility regarding timing of the disclosure of estimates and 
eliminating the proposed ``mini-MD&A'' requirement.
    We also recognize that tests for impairment or recoverability often 
occur in conjunction with the preparation, review or audit of financial 
statements. In light of the fact that a periodic report with complete 
financial statements will be made available to the public, we have 
added an instruction indicating that no Form 8-K disclosure is required 
pursuant to this item if the conclusion regarding the material charge 
is made in connection with the preparation, review or audit of 
financial statements at the end of a fiscal quarter or year and the 
plan is disclosed in the company's Exchange Act report for that 
period.\88\
---------------------------------------------------------------------------

    \88\ See Instruction to Item 2.06.
---------------------------------------------------------------------------

Section 3--Securities and Trading Market
Item 3.01 Notice of Delisting or Failure To Satisfy a Continued Listing 
Rule or Standard; Transfer of Listing
    New Item 3.01(a) requires a company to report its receipt of a 
notice from the national securities exchange or national securities 
association (or facility thereof) that maintains the principal listing 
for any class of the company's common equity,\89\ indicating that:
---------------------------------------------------------------------------

    \89\ This term is defined in Exchange Act Rule 12b-2 [17 CFR 
240.12b-2].
---------------------------------------------------------------------------

     The company or such class of its securities does 
not satisfy a rule or standard for continued listing on the exchange or 
association;
     The exchange has submitted an application under 
Exchange Act Rule 12d2-2 to the Commission to delist such class of the 
company's securities; or
     The association has taken all necessary steps 
under its rules to delist the security from its automated inter-dealer 
quotation system.\90\
---------------------------------------------------------------------------

    \90\ We note that Instruction 3 to Item 3.01 provides that 
companies whose securities are quoted exclusively (i.e., the 
securities are not otherwise listed on an exchange or association) 
on automated inter-dealer quotation systems, such as the over-the-
counter bulletin board, or OTCBB, and The Electronic Pink Sheets, 
are not subject to Item 3.01. Thus, these companies will not be 
required to file a Form 8-K pursuant to Item 3.01 if the securities 
cease to be quoted on such quotation system. These quotation systems 
do not provide companies with the ability to list their securities, 
but, rather, serve as a medium for the over-the-counter securities 
market by collecting and distributing market maker quotes to 
subscribers. These automated inter-dealer quotation systems do not 
maintain or impose listing standards, nor do they have a listing 
agreement or arrangement with the companies whose securities are 
quoted through them. Although market makers may be required to 
review and maintain specified information about a company and to 
furnish that information to the inter-dealer quotation system, the 
companies whose securities are quoted on such systems do not have 
any filing or reporting requirements imposed by the system. In some 
cases, however, a security that is listed on an exchange or 
association may also be quoted on such an automated inter-dealer 
quotation system. In that case, the company is be subject to Item 
3.01 if any of the events specified in Item 3.01 occur.
---------------------------------------------------------------------------

    A company that receives this type of a notice must disclose the 
following information:
     The date that it received the notice;

[[Page 15602]]

     The rule or standard for continued listing on 
the national securities exchange or national securities association 
that the company fails, or has failed, to satisfy; and
     Any action or response that, at the time of 
filing, the company has determined to take in response to the notice.
    In addition, under Item 3.01(b), if the company \91\ has notified 
the national securities exchange or national securities association (or 
a facility thereof) that maintains the principal listing for any class 
of the company's common equity 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:
---------------------------------------------------------------------------

    \91\ Disclosure pursuant to this Item 3.01(b) is required if a 
particular exchange or association rule specifically provides that a 
particular officer or other authorized individual, such as the chief 
executive officer, must provide the notice to the exchange or 
association, rather than the company itself.
---------------------------------------------------------------------------

     The date that the company provided such notice 
to the exchange or association;
     A rule or standard for continued listing on the 
exchange or association that the registrant fails, or has failed, to 
satisfy; and
     Any action or response that, at the time of 
filing, the company has determined to take regarding its noncompliance.
    Furthermore, under Item 3.01(c), if a national securities exchange 
or national securities association (or a facility thereof) that 
maintains the principal listing for any class of the company's common 
equity, in lieu of suspending trading in or delisting such class of the 
company's securities, issues a public reprimand letter or similar 
communication indicating that the company has violated a rule or 
standard of the exchange or association, the company must state the 
date and summarize the contents of the letter or communication.
    Finally, Item 3.01(d) requires that, if the company's board of 
directors, a committee of the board of directors or the officer or 
officers of the company authorized to take such action if board action 
is not required, has taken definitive action to cause the listing of a 
class of its common equity to be withdrawn from the national securities 
exchange, or terminated from the automated inter-dealer quotation 
system of a registered national securities association, where such 
exchange or association maintains the principal listing for such class 
of securities, the company must describe the action taken and state the 
date of the action.
    This requirement includes disclosure of action taken by a company 
to transfer such a listing or quotation of its securities to another 
securities exchange or quotation system. The definitive action taken by 
the company may also include the adoption of a resolution by the board 
of directors, or committee of the board, to delist the class of 
securities.
    Pursuant to Instruction 1 to Item 3.01, the company is not required 
to disclose any information required by paragraph (a) of Item 3.01 
where, generally, the delisting is a result of one of the following:
     The entire class of the security has been called 
for redemption, maturity or retirement and, if required by the terms of 
the securities, funds sufficient for the payment of all such securities 
have been deposited with an agency authorized to make such payments and 
such funds have been made available to security holders;
     The entire class of the security has been 
redeemed or paid at maturity or retirement;
     The instruments representing the entire class of 
securities have come to evidence, by operation of law or otherwise, 
other securities in substitution therefor and represent no other right, 
except, if true, the right to receive an immediate cash payment; or
     All rights pertaining to the entire class of the 
security have been extinguished.
    These exceptions are specifically referenced in Rule 12d2-2, the 
rule pursuant to which national securities exchanges file applications 
with the Commission to delist a security from the exchange.
    In addition, Instruction 2 to Item 3.01 provides that a company 
must provide the disclosure required by paragraph (a) or (b) of this 
Item 3.01, as applicable, regarding any failure to satisfy a rule or 
standard for continued listing on the national securities exchange or 
national securities association (or a facility thereof) that maintains 
the principal listing for any class of the company's common equity even 
if the company has the benefit of a grace period or similar extension 
period during which it may cure the deficiency that triggers the 
disclosure requirement.
    We had proposed to require companies to disclose notifications by 
an exchange or association of delisting or noncompliance with required 
listing requirements or standards. Since the time that the Form 8-K 
proposals were issued, we approved new rules \92\ submitted by the New 
York Stock Exchange, the National Association of Securities Dealers, on 
behalf of The Nasdaq Stock Market, and the American Stock Exchange that 
require listed companies to notify the relevant market when an 
executive officer of the listed issuer becomes aware of any material 
noncompliance with the listing rules or standards relating to corporate 
governance.\93\ In addition, as part of its recent amendments 
pertaining to corporate governance listing standards, the NYSE may 
issue a public reprimand letter to listed issuers that violate 
specified listing rules or standards.\94\ This public reprimand letter 
is intended to serve as a lesser sanction than the delisting of the 
issuer's securities.
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    \92\ See, for example, Release No. 34-48745 (November 4, 2003) 
[68 FR 64154].
    \93\ See, for example, Rule 303A.12(b) of the NYSE Listing 
Manual and Rule 4350(m) of The Nasdaq Stock Market, Inc. Marketplace 
Rules.
    \94\ See Rule 303A.13 of the NYSE Listing Manual.
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    Furthermore, Exchange Act Rule 10A-3(a)(4) \95\ requires an 
exchange or association to adopt standards requiring listed companies 
to notify the exchange or association promptly after an executive 
officer of the listed issuer becomes aware of any material 
noncompliance by the listed company with the requirements of the rule. 
In addition, under certain exchange or association listing standards or 
agreements, a listed company may be generally required to notify the 
exchange or association in the event they no longer comply with a 
particular listing standard. As a result, we believe the inclusion of 
Items 3.01(b) and (c) is necessary to ensure that all communications 
between a company and an exchange or association regarding delisting 
matters or noncompliance with a rule or standard for continued listing 
are disclosed.
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    \95\ 17 CFR 240.10A-3(a)(4). Rule 10A-3 requires the rules of 
each registered national securities exchange and national securities 
association to prohibit the initial or continued listing of any 
security of a company that is not in compliance with the audit 
committee requirements of Rule 10A-3.
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    In response to commenters, we have clarified that the relevant 
listing requirements or standards for this item are the rules or 
standards for continued listing on the exchange or association. 
Typically, exchanges and quotation systems have different standards for 
determining whether a security is qualified to enter the exchange or 
quotation system than for determining whether a security can remain 
listed. Because the entry standards are not relevant to whether the 
securities may continue trading on such exchange or

[[Page 15603]]

quotation system, we have made this clarification.
    Also, in response to commenters, we have revised the third element 
of the disclosure requirements regarding any action that the company 
has determined to take in response to a notice of delisting or failure 
to satisfy a listing standard. Commenters noted that, in light of the 
short Form 8-K filing deadline, a company may not have sufficient time 
to determine its course of action or to fully analyze the effect of 
such delisting on the company.\96\ Thus, the item only requires 
identification of the company's anticipated action or response as of 
the Form 8-K filing date.\97\ In addition, to clarify when an event 
triggering disclosure under new Item 3.01 occurs, we have revised the 
language in the item to more closely track and reference delisting 
rules and delisting procedures.\98\
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    \96\ See the letters from the Grundfest Group and NY State Bar.
    \97\ A company may, of course, voluntarily file an amendment to 
the previously filed Form 8-K regarding any changes to the 
anticipated action or response.
    \98\ The item now specifically references provisions of Rule 
12d2-2, pursuant to which national securities exchanges file 
applications with the Commission to delist a security from that 
exchange.
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    Some commenters believed that the filing of a letter from the 
exchange or association as a Form 8-K exhibit would not significantly 
enhance the disclosures already required to be made by the company.\99\ 
In response, we are not adopting the proposed provision that companies 
file the actual written notice received from the exchange or 
association as an exhibit.
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    \99\ See the letters from the ABA, Investment Counsel 
Association of America (``ICAA'') and Shearman & Sterling.
---------------------------------------------------------------------------

    One commenter requested clarification that ``early warning'' 
notices should not trigger disclosure.\100\ While we agree with this 
commenter, we believe that the language of the item is clear in this 
regard. An early warning notice that merely informs the company that it 
is in danger of falling out of compliance with a rule or standard for 
continued listing on the exchange or association is not a notice that 
the company no longer satisfies that rule or standard. Thus, a 
company's receipt of such a notice will not trigger a disclosure 
obligation under the item. However, if the warning notice informs the 
company that it is out of compliance with a rule or standard for 
continued listing, but that the company will not be delisted if it 
cures the problem within a specified time, such a notice will trigger a 
Form 8-K filing requirement.
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    \100\ See the letter from the NY State Bar.
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    As a result, we generally anticipate two filings in the typical 
involuntary delisting process under Items 3.01(a) and (b). An initial 
filing will be made when the company receives the first notice that it 
does not comply with a rule or standard for continued listing, or when 
it notifies the exchange or association that it no longer complies with 
a rule or standard for continued listing on the exchange or 
association.\101\ A second Form 8-K filing will be required under Item 
3.01(a) upon the company's receipt of a notice regarding the actual 
delisting of a class of the company's securities.\102\
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    \101\ Instruction 3 to Item 3.01 states that subsequent notices 
or other communications that continue to indicate that the company 
does not comply with the same rule or standard for continued listing 
that was the subject of the initial notice are not required to be 
filed, but may be filed voluntarily.
    \102\ We note that Item 3.01 refers to a national securities 
exchange or a national securities association (or a facility 
thereof). Thus, for example, a notification by The Nasdaq Stock 
Market that a company does not satisfy a rule or standard for 
continued listing on Nasdaq, if Nasdaq maintains the principal 
listing of any class of the company's common equity, would be 
subject to Item 3.01.
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Item 3.02 Unregistered Sales of Equity Securities
    This new item requires a company to disclose the information 
specified in paragraphs (a) and (c) through (e) of Item 701 of 
Regulation S-K regarding the company's sale of equity securities in a 
transaction that is not registered under the Securities Act. This 
disclosure is currently required in Item 2(c) of Forms 10-Q and 10-QSB 
and Item 5(a) of Forms 10-K and 10-KSB.\103\
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    \103\ See 17 CFR 249.308a, 249.308b, 249.310 and 249.310a.
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    The amendments to Form 8-K will require earlier disclosure of 
certain issuances of unregistered equity securities, as discussed 
below. We believe that more timely disclosure of such issuances will 
benefit investors due to the fact that unregistered sales of equity 
securities can have a significant effect on the capital structure of 
the company and the security holdings of existing investors. Issuances 
not reported on Form 8-K, however, will continue to be required to be 
reported in periodic reports.
    In response to concerns raised by commenters,\104\ we have limited 
the disclosure of sale of unregistered equity securities required to be 
filed on Form 8-K. Under the new item, no Form 8-K need be filed if the 
equity securities sold in the aggregate since the company's last report 
filed under this item or last periodic report, whichever is more 
recent, constitute less than 1% of the company's outstanding securities 
of that class.\105\ In the case of a small business issuer,\106\ if the 
securities sold in the aggregate since the small business issuer's last 
report filed under this item or last periodic report, whichever is more 
recent, constitute less than 5% of the small business issuer's 
outstanding securities of that class, the information need not be 
disclosed on Form 8-K. We believe that these quantitative thresholds 
are appropriate given that companies will be required to continue to 
report all other unregistered sales of equity securities in their 
periodic reports.
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    \104\ See, for example, the letters from the ABA, Compass 
Bancshares, Deloitte & Touche and John Deere.
    \105\ Instruction 2 to Item 3.02 states that ``the number of 
shares outstanding'' refers to the actual number of shares of equity 
securities of the class outstanding and does not include outstanding 
securities convertible into or exchangeable for such equity 
securities.
    \106\ As defined under Item 10(a)(1) of Regulation S-B [17 CFR 
228.10(a)(1)]. See Instruction 3 to Item 3.02.
---------------------------------------------------------------------------

    For purposes of determining the required Form 8-K filing date under 
this item, we have provided that a company has no obligation to 
disclose information under Item 3.02 until the company enters into an 
agreement enforceable against it, whether or not subject to conditions, 
under which the equity securities are to be sold. If there is no such 
agreement, the company must provide the disclosure within four business 
days after the occurrence of the closing or settlement of the 
transaction or arrangement under which the equity securities are sold.
    Commenters suggested that issuances of unreported equity securities 
through conversion and similar transactions should not require an Item 
8-K filing. We believe that, given the 1% and 5% thresholds we have 
adopted and the importance of equity security issuances, these types of 
transactions should be covered.
Item 3.03 Material Modifications to Rights of Security Holders
    This new item requires a company to disclose material modifications 
to the rights of the holders of any class of the company's registered 
securities and to briefly describe the general effect of such 
modifications on such rights. The substance of the disclosure is the 
same as previously required by Items 2(a) and (b) of Forms 10-Q and 10-
QSB.\107\
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    \107\ See 17 CFR 249.308a and 249.308b.
---------------------------------------------------------------------------

    We proposed to eliminate an existing instruction regarding working 
capital restrictions and other limitations upon

[[Page 15604]]

the payment of dividends because we believed that it was clear that 
such restrictions and limitations constitute material modifications to 
the rights of security holders. One commenter disagreed and recommended 
that we keep the instruction.\108\ To clarify that this item requires 
disclosure of such provisions, we are including the existing 
instruction in the new item.
---------------------------------------------------------------------------

    \108\ See the letter from Shearman & Sterling.
---------------------------------------------------------------------------

    The proposals would not have required disclosure about a particular 
material modification to the rights of security holders if the company 
previously had described the modification in its proxy statement at the 
time it proposed the modification. One commenter noted that, although 
the proposed modification would have been disclosed, investors would 
not be informed as to whether the proposal had been approved by 
shareholders and ultimately adopted by the company until the company 
filed its next required periodic report.\109\ In response to this 
comment, we have eliminated this exception from Item 3.02. In addition, 
once a company has reported a material modification to the rights of 
its security holders on Form 8-K, the company need not make any 
duplicative disclosure about the modification in any of its 
subsequently filed periodic reports.\110\
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    \109\ See the letter from the NY State Bar.
    \110\ See Instruction B.3 to Form 8-K.
---------------------------------------------------------------------------

Section 4--Matters Related to Accountants and Financial Statements
Item 4.01 Changes in Registrant's Certifying Accountant
    This item is substantively the same as former Item 4 of Form 8-K, 
requiring disclosure of the resignation, dismissal or engagement of an 
independent accountant. The only revision we have made to the 
substantive requirements of former Item 4 is to delete the phrase ``and 
the related instructions to Item 304'' as a company routinely needs to 
consider and comply with the instructions to all of our disclosure 
items containing instructions.
Item 4.02 Non-Reliance on Previously Issued Financial Statements or a 
Related Audit Report or Completed Interim Review
    This new item requires a company to file a Form 8-K if and when its 
board of directors, a committee of the board of directors, or an 
authorized officer or officers if board action is not required, 
concludes that any of the company's previously issued financial 
statements covering one or more years or interim periods no longer 
should be relied upon because of an error in such financial statements 
as addressed in Accounting Principles Board Opinion No. 20 (APB Opinion 
No. 20). This item requires the company to disclose the following 
information:
     The date of the conclusion regarding the non-
reliance and an identification of the financial statements and years or 
periods covered that should no longer be relied upon;
     A brief description of the facts underlying the 
conclusion to the extent known to the company at the time of filing; 
and
     A statement of whether the audit committee, or 
the board of directors in the absence of an audit committee, or 
authorized officer or officers, discussed with the company's 
independent accountant the subject matter giving rise to the 
conclusion.
    Similarly, 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, it must disclose the following information:
     The date on which the company was so advised or 
notified;
     Identification of the financial statements that 
should no longer be relied upon;
     A brief description of the information provided 
by the accountant; and
     A statement of whether the audit committee, or 
the board of directors in the absence of an audit committee, or 
authorized officer or officers, discussed with the independent 
accountant the subject matter giving rise to the notice.
    In addition, if the company receives such an advice or notice from 
its independent accountant, the company must provide the independent 
accountant with a copy of the disclosures it is making under Item 
4.02(b) no later than the same day it files these disclosures with the 
Commission. The company also must request the independent accountant to 
furnish to the company as promptly as possible a letter addressed to 
the Commission stating whether the accountant agrees with the 
statements made by the company and, if not, stating the respects in 
which it does not agree. The company must then amend its previously 
filed Form 8-K by filing the independent accountant's letter as an 
exhibit to the filed Form 8-K within two business days of the company's 
receipt of the letter.
    Commenters believed that the scope of the proposed item was too 
broad. Specifically, one commenter noted that there are some 
circumstances under which a company may need to restate its financial 
statements, or accountants may refuse to allow reliance on their 
reports, that do not implicate a problem with the financial 
statements.\111\ For example, a company may be required to restate its 
financial statements as a result of the completion of a stock 
split.\112\ In response to these comments, we have modified this item 
to require disclosure under Item 4.02(a) where the company concludes 
that a prior statement should not be relied on because of an error or, 
under Item 4.02(b), where an independent accountant has notified a 
company that it should take action to prevent future reliance on 
previously issued financial statements audited or reviewed by the 
accountant.
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    \111\ See the letter from the ABA.
    \112\ Another example would include a plan to discontinue 
operations (see Statement of Financial Accounting Standards No. 144, 
Accounting for the Impairment or Disposal of Long-Lived Assets). As 
these examples illustrate, certain events that occur after the end 
of a fiscal year may require retroactive restatement of that year's 
financial statements if such statements are reissued, but are not 
events that would trigger disclosure under Item 4.02.
---------------------------------------------------------------------------

    Commenters also opposed the proposed requirement that a company 
disclose its plan to address the issue. They were concerned that, 
within the short Form 8-K filing timeframe, the company may not have 
sufficient time to complete its analysis regarding the impact of the 
error on the company's financial statements, which could require 
discussions with numerous parties, including the accountants.\113\ We 
agree with those commenters and have revised this item to eliminate 
this proposed requirement.\114\
---------------------------------------------------------------------------

    \113\ See the letters from Foley Hoag and Radin Glass.
    \114\ Regarding the requirement of a company to disclose under 
Item 4.02(a) a brief description of the facts underlying the 
conclusion to the extent known to the company at the time of filing, 
a company may, of course, voluntarily file an amendment to the 
previously filed Form 8-K regarding any changes to the facts 
underlying the conclusion.
---------------------------------------------------------------------------

    We have also separated the situation in which the company makes the 
determination internally regarding non-reliance on its financial 
statements from that in which the company's independent accountant 
notifies the company of non-reliance on a previously issued audit 
report or completed interim review by including them in two different 
paragraphs to clarify the requirements of the item.

[[Page 15605]]

Section 5--Corporate Governance and Management
Item 5.01 Changes in Control of Registrant
    We are adopting this pre-existing item of Form 8-K substantially as 
proposed. We are not adopting the proposed revision regarding the 
source of funds used to effect a change in control due to the 
Congressional intent issue discussed under Item 2.01 above. We have, 
however, streamlined the language of the item to make it read more 
clearly. We have also not included the proposed instruction to Item 
5.01 stating that disclosure pursuant to this item could be provided by 
incorporation by reference to a previous filing. We believe that 
Instruction B.3 to Form 8-K makes this clear.
Item 5.02 Departure of Directors or Principal Officers; Election of 
Directors; Appointment of Principal Officers
    a. Disclosure under Item 5.02(a) when a director resigns or refuses 
to stand for re-election due to a disagreement or is removed for cause.
    Paragraph (a) of Item 5.02 broadens the scope of former Item 6 of 
Form 8-K. Former 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. Thus, the action necessary to trigger 
disclosure pursuant to the former item rested solely with the director.
    Under the revised item, if a director has resigned or refuses to 
stand for re-election to the board of directors since the date of the 
last annual meeting of shareholders because of a disagreement with the 
company, known to an executive officer of the company,\115\ on any 
matter relating to the company's operations, policies or practices, or 
if a director has been removed for cause from the board of directors, 
the company must disclose:
---------------------------------------------------------------------------

    \115\ The term ``executive officer'' is defined in Exchange Act 
Rule 3b-7.
---------------------------------------------------------------------------

     The date of the director's resignation, refusal 
to stand for re-election or removal;
     Any positions held by the director on any 
committee of the board of directors at the time of the director's 
resignation, refusal to stand for re-election or removal; and
     A brief description of the circumstances 
representing the disagreement that management believes caused, in whole 
or in part, the director's resignation, refusal to stand for re-
election or removal.
    In addition, if the director furnishes the company with any written 
correspondence concerning the circumstances surrounding his or her 
resignation, refusal or removal, the company must file a copy of the 
correspondence as an exhibit to the report on Form 8-K regardless of 
whether the director requests that the company take such action. The 
company must provide the director with a copy of the disclosures it is 
making in response to this item no later than the day that the company 
files the disclosures with the Commission. The company must also 
provide the director with the opportunity to furnish a letter addressed 
to the company as promptly as possible stating whether he or she agrees 
with the company's disclosures in response to this item and, if not, 
the respects in which he or she does not agree. Finally, the company 
must file any letter it receives from the director with the Commission 
as an exhibit by amendment to the previously filed Form 8-K within two 
business days after receipt by the company.
    Several commenters were concerned that the company may not be aware 
that the director departed because of a disagreement.\116\ We believe 
that the phrase ``known to an executive officer of the company'' means 
that the company must be aware of the disagreement. As such, we have 
adopted this provision of Item 5.02(a) as proposed.
---------------------------------------------------------------------------

    \116\ See the letters from Cleary Gottlieb, Radin Glass and 
Shearman & Sterling.
---------------------------------------------------------------------------

    b. Disclosure under Item 5.02(b) when certain officers retire, 
resign or are terminated and disclosure when a director retires, 
resigns, is removed or refuses to stand for re-election for any reason 
other than as a result of a disagreement or for cause.
    Paragraph (b) of Item 5.02 requires disclosure when the company's 
principal executive officer, president, principal financial officer, 
principal accounting officer, principal operating officer or any person 
performing similar functions retires, resigns, or is terminated from 
that position. The item also requires disclosure when a director 
retires, resigns, is removed or declines to stand for re-election and 
the company is not required to provide disclosure under Item 5.02(a).
    Several commenters were concerned about our proposal to require 
disclosure of the reasons for the departure of an officer.\117\ They 
noted that requiring disclosure of reasons such as personal infirmity 
may cause unnecessary embarrassment to the departing officer. Some 
commenters similarly suggested that, if the officer leaves for reasons 
other than those disclosed by the company, such disclosure potentially 
could lead to a defamation action by the officer against the company. 
Other commenters believed that requiring disclosure of a disagreement 
regarding matters such as company policy or strategy between two 
officers would usurp the typical corporate decision-making process. We 
believe these concerns are valid and have therefore eliminated this 
proposed requirement.
---------------------------------------------------------------------------

    \117\ See, for example, the letters from the ABA, Cleary 
Gottlieb, D'Ancona & Pflaum, Grundfest Group, Kellogg, Sullivan & 
Cromwell and Wells Fargo.
---------------------------------------------------------------------------

    c. Disclosure under Item 5.02(c) and (d) when the registrant 
appoints certain new officers or a new director is elected.
    Paragraph (c) of Item 5.02 requires disclosure if the company 
appoints a new principal executive officer, president, principal 
financial officer, principal accounting officer, principal operating 
officer or person performing similar functions. The company must 
disclose the officer's name, position, the date of the appointment, 
information regarding the background of the officer and certain related 
transactions with the company,\118\ and a brief description of the 
material terms of any employment agreement between the company and the 
officer.
---------------------------------------------------------------------------

    \118\ Specifically, Item 5.02(c) requires disclosure of the 
information required by Items 401(b), 401(d), 401(e) and 404(a) of 
Regulation S-K [17 CFR 229.401(b), (d) and (e) and 229.404(a)], or, 
in the case of a small business issuer, Items 401(a)(4), 401(a)(5), 
401(c) and 404(a) of Regulation S-B [17 CFR 228.401(a)(4), (a)(5) 
and (c), and 228.404(a) and (b)].
---------------------------------------------------------------------------

    In addition, if a new director is elected to the board, except by a 
vote of security holders at an annual meeting or a special meeting 
convened for such purpose, paragraph (d) of Item 5.02 requires 
disclosure of the new director's name, the election date, a brief 
description of any arrangement or understanding pursuant to which the 
new director was selected as a director, any committees to which the 
new director has been, or at the time of the disclosure is expected to 
be, named, and information regarding certain related transactions 
between the new director and the company.\119\
---------------------------------------------------------------------------

    \119\ Specifically, Item 5.02(d) requires disclosure of 
information required by Item 404(a) of Regulation S-K.
---------------------------------------------------------------------------

    Instruction 2 to Item 5.02 provides that, to the extent that 
information regarding an employment contract of a newly-appointed 
executive officer, or the board committee or related party transaction 
information associated with a newly-elected director, is not determined 
or is unavailable at the time of the required Form 8-K filing, a 
company must include a statement to

[[Page 15606]]

this effect in the filing and then must file an amendment to the Item 
5.02 Form 8-K filing containing the information within four business 
days after the information is determined or becomes available.
    One commenter was concerned that requiring immediate disclosure of 
the appointment of an officer could interfere with the company's 
ability to plan for a smooth transition of authority.\120\ It stated 
that companies need time to make proper introductions within the 
organization before publicly announcing such appointment. In response 
to this comment, we have inserted an instruction to Item 5.01(c) that 
permits a company to delay such disclosure until the day on which the 
company first makes public announcement of the appointment if the 
company intends to make a public announcement of the appointment other 
than by means of a report on Form 8-K.
---------------------------------------------------------------------------

    \120\ See the letter from the ABA.
---------------------------------------------------------------------------

    One commenter believed that the departure or appointment of 
directors and officers of certain companies should not be reportable 
under this item.\121\ We agree and have inserted an instruction to 
exclude a company that is a wholly-owned subsidiary of a reporting 
company from the reporting requirements of Item 5.02.\122\
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    \121\ See the letter from the ABA.
    \122\ See Instruction 1 to Item 5.02.
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Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in 
Fiscal Year
    This item 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 or 
information statement. The item requires the company to disclose the 
effective date of the amendment and a description of the provision 
adopted or changed by amendment and, if applicable, the previous 
provision.
    If the company determines to change the fiscal year from that used 
in its most recent filing with the Commission by means other than a 
submission to a vote of security holders through the solicitation of 
proxies or otherwise, or by an amendment to its articles of 
incorporation or bylaws, the company must state the date of that 
determination, the date of the new fiscal year end and the form on 
which the report covering the transition period will be filed.
    One commenter noted that Item 601 of Regulation S-K requires a 
company to file a complete copy of its articles of incorporation or 
bylaws as amended.\123\ The commenter was concerned that companies may 
not have sufficient time to prepare the restated copies for filing 
within the allotted timeframe. Thus, we have added an instruction to 
this item, as well as to Item 601 of Regulations S-K and S-B, 
clarifying that if an amendment to the articles of incorporation or 
bylaws is reported on Form 8-K, the company need only file the text of 
the amendment as an exhibit to the filing. If it does so, it must file 
the restated articles of incorporation or bylaws as an exhibit to its 
next periodic report.
---------------------------------------------------------------------------

    \123\ See the letter from the ABA.
---------------------------------------------------------------------------

    One commenter suggested that the item be limited to companies with 
a class of equity securities registered under Section 12 of the 
Exchange Act.\124\ Companies that do not have equity securities 
registered under the Exchange Act are typically debt issuers. The 
rights of holders of such securities are reflected in the debt 
documents and changes to those rights would typically be reflected 
under Item 3.03. We have revised this item accordingly in response to 
this comment.
---------------------------------------------------------------------------

    \124\ See the letter from the ABA.
---------------------------------------------------------------------------

D. Proposed Form 8-K Items Not Being Adopted

    We proposed several additional new Form 8-K items which we are not 
adopting. First, we proposed an item that would have required 
disclosure of temporary suspension of trading under a company's 
employee benefit plans. Section 306 of the Sarbanes-Oxley Act required 
us to adopt rules requiring such disclosure on or before January 26, 
2003. In response, we adopted Regulation BTR and former Item 11 of Form 
8-K.\125\ We have redesignated former Item 11 as Item 5.04 in the 
reorganized Form 8-K.\126\
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    \125\ Release No. 34-47225 (January 22, 2003) [68 FR 4337].
    \126\ As discussed more fully below, we have also changed the 
due date for the Form 8-K filing under Item 5.04 to, generally, four 
business days after the company receives the notice required by 
section 101(i)(2)(E) of the Employment Retirement Income Security 
Act of 1974 [29 U.S.C. 1021(i)(2)(E)].
---------------------------------------------------------------------------

    Second, we proposed an item that would have required certain 
information regarding ratings received from rating agencies. On January 
24, 2003, we issued a study on credit rating agencies and subsequently 
issued a concept release.\127\ We continue to consider the appropriate 
regulatory approach for rating agencies.
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    \127\ See Report on the Role and Function of Credit Rating 
Agencies in the Operation of the Securities Markets (January 24, 
2003) [68 FR 35258], available at www.sec.gov/news/studies/creditratingreport0103.pdf, and Release No. 33-8236 (June 4, 2003) 
[68 FR 35258].
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    Finally, we proposed an item that would have required disclosure 
regarding the termination or reduction of a business relationship with 
a customer. Many commenters opposed this item on the basis that it 
would be difficult for a company to determine when such a termination 
or reduction occurs. In addition, commenters were concerned about 
possible competitive harm caused by customers using such disclosure as 
a negotiation ploy. The proposed item would have some of the same types 
of concerns as are posed by new Item 1.02. In Item 1.02, we have sought 
to resolve the competitive harm issue by granting companies some 
latitude in determining when a contract has been terminated. We agree 
with commenters, however, that a reduction of customer orders can be 
difficult to discern as such reductions can happen over a period of 
time.\128\ Thus, we have decided not to adopt this proposed item.\129\
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    \128\ See, for example, the letters from the NY City Bar, Cleary 
Gottlieb, Grundfest Group, PWC and Shearman & Sterling.
    \129\ However, we remind companies that Item 303 of Regulations 
S-K and S-B [17 CFR 229.303 and 17 CFR 228.303], Management's 
Discussion and Analysis of Financial Condition and Results of 
Operations, requires disclosure of known trends or uncertainties 
that have had, or that the company reasonably expects will have, a 
material favorable or unfavorable impact on net sales or revenues or 
income from continuing operations.
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E. Safe Harbor and Eligibility To Use Forms S-2 and S-3 and To Rely on 
Rule 144

    Several commenters recommended that we adopt a safe harbor to 
protect a company against potential liability under Exchange Act 
Section 10(b) and Rule 10b-5 stemming from the company's failure to 
timely file a required Form 8-K.\130\ While we are not convinced that 
we should extend a Section 10(b) and Rule 10b-5 safe harbor to all of 
the Form 8-K items, we recognize that several of the new Form 8-K 
disclosure items may require management to quickly assess the 
materiality of an event or to determine whether a disclosure obligation 
has been triggered. In this respect, these items raise issues analogous 
to those we considered in our adoption of the Section 10(b) and Rule 
10b-5 safe harbor under Regulation FD.\131\
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    \130\ See the letters from Emerson, NAREIT, NY City Bar and 
Shearman & Sterling.
    \131\ Item 7.01, Regulation FD Disclosures, is already subject 
to a safe harbor from Section 10(b) and Rule 10b-5 pursuant to 
Regulation FD (17 CFR 243.100-243.103). Also, because Item 8.01, 
Other Events, is designated for voluntary filings, it does not, by 
itself, impose a duty to disclose for purposes of Section 10(b) and 
Rule 10b-5.

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[[Page 15607]]

    As a result, we have decided to adopt a new limited safe harbor 
from public and private claims under Exchange Act Section 10(b) and 
Rule 10b-5 for a failure to timely file a Form 8-K regarding the 
---------------------------------------------------------------------------
following items:

Item 1.01 Entry into a Material Definitive Agreement
Item 1.02 Termination of a Material Definitive Agreement
Item 2.03 Creation of a Direct Financial Obligation or an Obligation 
under an Off-Balance Sheet Arrangement of a Registrant
Item 2.04 Triggering Events that Accelerate or Increase a Direct 
Financial Obligation under an Off-Balance Sheet Arrangement
Item 2.05 Costs Associated with Exit or Disposal Activities
Item 2.06 Material Impairments
Item 4.02(a) Non-Reliance on Previously Issued Financial Statements or 
a Related Audit Report or Completed Interim Review (in the case where a 
company makes the determination and does not receive a notice described 
in Item 4.02(b) from its accountant)

    In light of this new limited safe harbor under Section 10(b) and 
Rule 10b-5, we have eliminated the proposed safe harbor from liability 
under Section 13(a) or 15(d). As a result, the new safe harbor will not 
affect our ability to enforce any of the Form 8-K filing requirements 
under these sections.
    The safe harbor for these items states that no failure to file a 
report on Form 8-K that is required solely pursuant to the provisions 
of Form 8-K shall be deemed to be a violation of Section 10(b) and Rule 
10b-5 under the Exchange Act. The safe harbor only applies to a failure 
to file a report on Form 8-K. Thus, material misstatements or omissions 
in a Form 8-K will continue to be subject to Section 10(b) and Rule 
10b-5 liability.
    In addition, if the company has a duty to disclose information that 
is the subject of any of the Form 8-K items covered by the safe harbor 
for any reason apart from the Form 8-K requirement, the safe harbor 
will not provide protection from Section 10(b) and Rule 10b-5 that may 
arise from the company's failure to satisfy such separate disclosure 
obligation. For example, if a company publicly sells or repurchases its 
own securities while in possession of material non-public information 
that is required to be disclosed in a Form 8-K report pursuant to an 
item that is covered by the safe harbor, the safe harbor will not 
protect the company from Section 10(b) and Rule 10b-5 liability 
regarding its separate disclosure obligation pursuant to the offering 
of securities.
    Furthermore, we are amending Forms 10-Q, 10-QSB, 10-K and 10-KSB to 
provide that the new safe harbor extends only until the due date of the 
periodic report of the company for the relevant period in which the 
Form 8-K was not timely filed. Thus, for example, if an event occurs 
that required the filing of a Form 8-K during a particular quarter, but 
the company fails to make the required timely disclosure on Form 8-K, 
the company must provide the disclosure prescribed by the relevant Form 
8-K item in its Form 10-Q or 10-QSB filed for the quarter during which 
that event occurred. Failure to make such disclosure in the periodic 
report will subject a company to potential liability under Section 
10(b) and Rule 10b-5, in addition to the potential liability under 
Section 13(a) or15(d).
    Similarly, several commenters stated that failure to file all 
required Form 8-K reports in a timely manner should not disqualify 
companies from being eligible to use Securities Act Form S-2 and S-3 
registration statements.\132\ Under our current rules, to be eligible 
to use Form S-2 or S-3, among other things, a company must have timely 
filed all reports required to be filed under Exchange Act Section 13(a) 
or 15(d) during the 12 months prior to filing of the registration 
statement.\133\
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    \132\ See, for example, the letters from the ABA, AICPA, Ernst & 
Young, NAREIT, NY City Bar, NY State Bar, Shearman & Sterling, 
Sullivan & Cromwell and Wyrick Robbins.
    \133\ See General Instruction I.C to Form S-2, referenced in 17 
CFR 239.12 and General Instruction I.A.3 to Form S-3, referenced in 
17 CFR 239.13, respectively.
---------------------------------------------------------------------------

    In response to these comments, we are revising the Form S-2 and S-3 
eligibility requirements. Under the revised instructions to these 
forms,\134\ companies that fail to file timely reports required by 
Items 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 and 4.02(a) will not lose 
their eligibility to use Form S-2 and S-3 registration statements. 
These are the same items that are covered by the new limited safe 
harbor from Section 10(b) and Rule 10b-5 liability.
---------------------------------------------------------------------------

    \134\ See revised General Instruction I.C to Form S-2 and 
revised General Instruction I.A.3 to Form S-3, as well as the 
revisions to 17 CFR 239.12 and 239.13.
---------------------------------------------------------------------------

    As stated above, we believe that these items may require management 
to make rapid materiality and similar judgments within the compressed 
Form 8-K filing timeframe. The potential significant burden that could 
result from a company's sudden loss of eligibility to use Form S-2 or 
S-3 under these circumstances could be a disproportionately large 
negative consequence of an untimely Form 8-K filing. We also believe 
that a carve-out of the same list of items as covered by the Section 
10(b) and Rule 10b-5 safe harbor provides a beneficial measure of 
regulatory consistency.
    We have clarified in the revised instructions, however, that a 
company must be current in its Form 8-K filings with respect to the 
items listed above at the actual time of a Form S-2 or S-3 filing. 
Thus, a company must have filed the disclosure required by any of these 
Form 8-K items on or before the date that it files a Form S-2 or Form 
S-3 registration statement to satisfy the eligibility requirements of 
these forms.\135\ With respect to the other Form 8-K items not listed 
above, a company's failure to timely file Form 8-K pursuant to any of 
these items will result in a loss of Form S-2 or S-3 eligibility for 
the 12 months following the Form 8-K due date.\136\ Many of these items 
are currently required Form 8-K disclosure items and are thus familiar 
to companies, while the other new Form 8-K items not included above 
generally do not require the same degree of analysis.
---------------------------------------------------------------------------

    \135\ For example, if a company fails to file an Item 1.01 Form 
8-K regarding the entry into a material definitive agreement, the 
company must include the disclosure required by Item 1.01 in the 
periodic report filed for the period in which the company failed to 
timely file the Form 8-K. This disclosure must be made before the 
company files a later Form S-3 registration statement (assuming that 
the registration statement is filed within 12 months of the missed 
Form 8-K) in order for the company to be current in its periodic 
reports and thus eligible to use Form S-3. If the company fails to 
include such disclosure in its quarterly report or annual report, as 
applicable, the company must amend the report to include the Item 
1.01 information before filing the Form S-3 registration statement.
    \136\ For example, if a company fails to timely file an Item 
3.01 Form 8-K regarding a delisting notice received from a national 
securities association, the company would be ineligible to use Form 
S-2 or S-3 for the next 12 months.
---------------------------------------------------------------------------

    Commenters also recommended that we clarify that a company's 
failure to timely file a Form 8-K report would not affect a security 
holder's ability to rely on Securities Act Rule 144 to resell 
securities. Rule 144 eligibility is conditioned on, among other things, 
the availability of current public information about the company.\137\ 
Because of the significant burden that would be placed on selling 
security holders if eligibility to rely on Rule 144 were conditioned on 
a company's satisfaction of the new Form 8-K requirements, we have 
amended Securities Act Rule 144 to clarify that a

[[Page 15608]]

company need not have filed all required Form 8-K reports during the 12 
months preceding a sale of securities pursuant to Rule 144 to satisfy 
the rule's ``current public information'' condition. As required by 
Rule 144(h),\138\ however, a security holder will continue to be 
required to represent that he or she does not have inside 
information.\139\
---------------------------------------------------------------------------

    \137\ See 17 CFR 230.144(c).
    \138\17 CFR 230.144(h).
    \139\ See generally Form 144 [17 CFR 239.144].
---------------------------------------------------------------------------

F. Other Matters Related to Form 8-K Filings and Conforming Amendments

1. Events Falling under Multiple Items
    We recognize that a company may need to report a given event under 
Item 1.01 as well as one or more other items, such as Item 2.03. We 
note that General Instruction D to Form 8-K permits a company to file a 
single Form 8-K to satisfy one or more disclosure items, provided that 
the company identifies by item number and caption all applicable items 
being satisfied and provides all of the substantive disclosure required 
by each of the items.
2. Amendments to Item 601 of Regulation S-K and Regulation S-B
    Certain new Form 8-K items require new exhibits to be filed with 
the report. Exhibits to periodic filings are addressed by Item 601 of 
Regulation S-K. We are adding or modifying entries describing these 
exhibits to the Item 601 exhibit table. These new or modified exhibit 
entries include: (a) Correspondence from an independent accountant 
regarding non-reliance on a previously issued audit report or completed 
interim review; (b) correspondence regarding the departure of director; 
(c) articles of incorporation; and (d) bylaws.
    We are also adopting amendments to Item 601 to footnote the ``8-K'' 
column in the Exhibit Table to clarify that a company need only file 
the exhibits marked in the ``8-K'' column of the table that are 
relevant to a particular report on Form 8-K. Again, companies that have 
previously submitted an exhibit with another periodic filing may 
incorporate the exhibit by reference into the applicable Form 8-K 
report.
    Finally, we are adopting a corrective amendment to eliminate the 
reference in Item 601 to submission of Financial Data Schedules.\140\ 
We eliminated the requirement to file a Financial Data Schedule on May 
30, 2000.\141\
---------------------------------------------------------------------------

    \140\ See current Item 601(a)(1) of Regulations S-B and S-K [17 
CFR 228.601(a)(1) and 229.601(a)(1)].
    \141\ Release No. 33-7855 (April 24, 2000) [65 FR 24788].
---------------------------------------------------------------------------

3. Clarification of Filing Status of Exhibits
    We have received several questions regarding whether an exhibit 
attached to a Form 8-K report furnished pursuant to Regulation FD is 
considered filed or furnished. In response to these questions, we have 
clarified General Instruction 2 to state clearly that if a report on 
Form 8-K contains disclosures under Item 2.02, Results of Operations 
and Financial Condition, or 7.01, Regulation FD Disclosure, whether or 
not the report contains disclosures regarding other items, all exhibits 
to that report relating to Item 2.02 or 7.01 will be deemed furnished, 
and not filed, unless the registrant specifies exhibits, or portions of 
exhibits, that are intended to be deemed filed rather than furnished. 
This amendment is intended only to clarify our position on this matter 
and does not change our existing position.
4. Revisions to Forms 10-Q, 10-QSB, 10-K and 10-KSB
    As proposed, the amendments modify or eliminate several items in 
Forms 10-Q, 10-QSB, 10-K and 10-KSB. Portions of the disclosures called 
for in these items are no longer required in quarterly and annual 
reports because they will be more promptly reported on Form 8-K. We 
have revised or deleted, as applicable, the following items in Part II 
of Forms 10-Q and 10-QSB:
     Revised the heading for Item 2 in Part II--Other 
Information;
     Removed Items 2(a), 2(b) and 6(b);
     Redesignated paragraphs (c), (d) and (e) in Item 
2 as paragraphs (a), (b) and (c);
     Revised newly redesignated paragraph (a) in Item 
2;
     Revised the Instructions to Item 3;
     Revised Item 5;
     Removed the words ``and Reports on Form 8-K 
(Sec.  249.308 of this chapter)'' from the heading of Item 6; and
     Removed the paragraph (a) designation in Item 6.
    We have also made the following changes to Form 10-K:
     Revised paragraph (a) of Item 5, Market for 
Registrant's Common Equity and Related Stockholder Matters to require 
disclosure only of unregistered sales of equity securities not 
previously disclosed on Form 8-K;
     Revised Item 9, Changes in and Disagreements 
With Accountants on Accounting and Financial Disclosure to require 
disclosure only of matters required by Item 304(b) of Regulation S-K; 
\142\
---------------------------------------------------------------------------

    \142\ 17 CFR 229.304(b).
---------------------------------------------------------------------------

     Added Item 9A, Other Information;
     Revised the heading of Item 15 to read 
``Exhibits and Financial Statement Schedules;''
     Deleted paragraph (b) of Item 15, Exhibits, 
Financial Statement Schedules, and Reports on Form 8-K; and
     Redesignated paragraphs (c) and (d) in Item 15 
as paragraphs (b) and (c).
    We have made the following changes to Form 10-KSB:
     Revised paragraph (a) of Item 5, Market for 
Registrant's Common Equity and Related Stockholder Matters to require 
disclosure only of unregistered sales of equity securities not 
previously disclosed on Form 8-K;
     Revised Item 8, Changes in and Disagreements 
With Accountants on Accounting and Financial Disclosure to require 
disclosure only of matters required by Item 304(b) of Regulation S-B 
\143\;
---------------------------------------------------------------------------

    \143\ 17 CFR 228.304(b).
---------------------------------------------------------------------------

     Added Item 8B, Other Information;
     Removed the words ``and Reports on Form 8-K'' 
from the heading to Item 13;
     Deleted paragraph (b) of Item 13, Exhibits and 
Reports on Form 8-K;
     Removed the paragraph (a) designation in Item 
13;
     Revised Item 3 in Part II of ``Information 
Required in Annual Report of Transitional Small Business Issuers;'' and
     Removed Item 6 in Part II of ``Information 
Required in Annual Report of Transitional Small Business Issuers.''
    As discussed above, however, we are adding an item to these forms 
that requires disclosure of any event required to be disclosed on a 
previous Form 8-K filing during the period covered by the forms which 
was not disclosed on Form 8-K.\144\ In addition, we have retained the 
requirement to disclose the information required pursuant to Item 
304(b) of Regulation S-K in Form 10-K and 10-KSB as such information is 
not required pursuant to Item 4.01 of Form 8-K.
---------------------------------------------------------------------------

    \144\ See Item 5 of Forms 10-Q and 10-QSB, new Item 9 of Form 
10-K and new Item 8 of Form 10-KSB.
---------------------------------------------------------------------------

5. Certification Under Section 906 of the Sarbanes-Oxley Act of 2002
    In June of 2003, the Commission adopted rules requiring the public 
filing of both the Sarbanes-Oxley Act Sections 302 and 906 chief 
executive officer and chief financial officer certifications as 
exhibits to various Exchange Act periodic reports. \145\ The adopting

[[Page 15609]]

release noted that there had been questions raised about whether the 
certifications required by Section 906 of the Sarbanes-Oxley Act 
applied to Form 8-K. In that release, we noted our concern that 
extending Section 906 certifications to Form 8-K could potentially 
chill the disclosure of information by companies. The release also 
noted that we were considering the questions in consultation with the 
Department of Justice.
---------------------------------------------------------------------------

    \145\ Release No. 33-8238 (June 5, 2003) [68 FR 36636].
---------------------------------------------------------------------------

    As a result of this review with the Department of Justice and 
representatives from the Department serving on the President's 
Corporate Fraud Task Force, the Department of Justice and we have 
jointly concluded that Section 906 does not apply to Form 8-K.\146\
---------------------------------------------------------------------------

    \146\ Section 906 certifications also do not apply to filings on 
Form 6-K or Form 11-K [17 CFR 249.306 and 17 CFR 249.311].
---------------------------------------------------------------------------

6. Other Conforming Amendments
    We have revised former Item 11 (new Item 5.04) of Form 8-K, 
regarding the temporary suspension of trading under company's employee 
benefit plans, to clarify that the required Form 8-K must be filed no 
later than the fourth business day after which the company receives the 
notice required by section 101(i)(2)(E) of the Employment Retirement 
Income Security Act of 1974 \147\ or, if such notice is not received by 
the company, on the same date on which the company transmits a timely 
notice to an affected officer or director within the time period 
prescribed by Rule 104(b)(2)(i)(B) or 104(b)(2)(ii) of Regulation 
BTR.\148\ The former Item 11 provided that the Form 8-K must be filed 
not later than the date prescribed for transmission of the notice 
required by Rule 104(b)(2) of Regulation BTR. We have also provided for 
the filing of the updated notices under Rule 104(b)(2)(iii) of 
Regulation BTR.\149\
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    \147\ 29 U.S.C. 1021(i)(2)(E).
    \148\ 17 CFR 245.104(b)(2)(i)(B) and 17 CFR 245.104(b)(2)(ii), 
respectively.
    \149\ 17 CFR 245.104(b)(2)(iii).
---------------------------------------------------------------------------

    We have also amended the General Instructions to Form 8-K to 
combine Instruction B.6 with Instruction B.2. These two instructions 
are largely identical beyond the fact that they apply to different 
items. Therefore we have combined them into a single instruction 
addressing both items.
    We have amended Note 1 at the end of Exchange Act Rules 13a-10 and 
15d-10 regarding transition reports.\150\ The previous note referred to 
Item 8 of Form 8-K, which has been re-designated as Item 5.03. Thus, we 
have conformed this reference accordingly. In addition, we have amended 
Item 9.01 of Form 8-K, Financial Statements and Exhibits, to ensure 
that financial statements required to be filed subsequent to an 
acquisition reported under Item 2.01 are due 71 days after the date the 
initial report on Form 8-K was required to be filed.
---------------------------------------------------------------------------

    \150\ 17 CFR 240.13a-10 and 17 CFR 240.15d-10.
---------------------------------------------------------------------------

    Finally, we have revised Exchange Act Rule 12b-23 \151\ to make 
clear that companies may incorporate by reference into their 
registration statements and reports information previously disclosed on 
Form 8-K without the requirement to file such Form 8-K reports as 
exhibits to the statements or reports.
---------------------------------------------------------------------------

    \151\ 17 CFR 240.12b-23.
---------------------------------------------------------------------------

III. Paperwork Reduction Act

A. Background

    The amendments contain ``collection of information'' requirements 
within the meaning of the Paperwork Reduction Act of 1995 (PRA). We 
published a notice requesting comment on the collection of information 
requirements in the proposing release, and submitted requests to the 
Office of Management and Budget (OMB) for approval in accordance with 
the PRA. These requests were approved by the OMB.
    The titles for the collections of information are:
     Form 8-K (OMB Control No. 3235-0060);
     Form 12b-25 (OMB Control No. 3235-0058);
     Form 10-K (OMB Control No. 3235-0063);
     Form 10-KSB (OMB Control No. 3235-0420);
     Form 10-Q (OMB Control No. 3235-0070);
     Form 10-QSB (OMB Control No. 3235-0416);
     Regulation S-K (OMB Control No. 3235-0071); and
     Regulation S-B (OMB Control No. 3235-0417).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.

B. Summary of Amendments

    The amendments add eight new disclosure items to Form 8-K, transfer 
two existing items from the periodic reports and expand disclosures 
under two existing Form 8-K requirements. The amendments also 
reorganize the Form 8-K items into topical categories, shorten the Form 
8-K filing deadline for most items to four business days after the 
occurrence of an event triggering the disclosure requirements of the 
form, provide a new limited safe harbor from liability under Exchange 
Act Section 10(b) and Rule 10b-5 for failure to file certain of the 
required Form 8-K reports, and provide limited relief from loss of 
eligibility to use Forms S-2 and S-3 stemming from a company's failure 
to timely file a Form 8-K report. These amendments are responsive to 
the ``real time issuer disclosure'' provision in Section 409 of the 
Sarbanes-Oxley Act of 2002. They are intended to provide investors with 
better and faster disclosure of important corporate events.

C. Summary of Comment Letters and Revisions to Proposals

    We requested comment on the PRA analysis contained in the proposing 
release. Several commenters believed that the burdens would be higher 
than our estimates. One commenter believed that the burden and costs 
would be twice as much as our estimated burden and cost for complying 
with the proposed amendments.\152\ Another commenter believed that it 
would have been required to file 15-20 more reports on Form 8-K during 
the past two years if the proposed requirements had been imposed during 
that period.\153\ Neither commenter provided us with evidence to 
suggest that their estimates would apply to all companies.
---------------------------------------------------------------------------

    \152\ Letter of Radin, Glass & Co.
    \153\ Letter of John Deere. It was unclear whether this 
commenter included all routine financings in its estimate. Item 2.03 
requires disclosure of short-term debt obligations only if they are 
made out of the ordinary course of business. We are uncertain as to 
whether the commenter's estimate would be the same under the adopted 
amendments.
---------------------------------------------------------------------------

    We also received comments directed at the substance of the proposed 
Form 8-K items. In response to these comments, we have revised numerous 
items to simplify determinations of whether a reportable event has 
occurred. We also have reduced the amount of information and analysis 
that must be disclosed under many of the items. Furthermore, we are not 
adopting two of the proposed items.\154\ Finally, in response to 
commenters' concerns regarding the difficulty of reporting events 
within two business days, as originally proposed, we have extended the 
filing deadline to four business days.
---------------------------------------------------------------------------

    \154\ We are not adopting in this release proposed Item 1.03 
Termination or Reduction of a Business Relationship with a Customer 
and proposed Item 3.01 Rating Agency Decisions.
---------------------------------------------------------------------------

D. Revisions to PRA Reporting and Cost Burden Estimates

    In response to the comments that we received on our estimates, we 
believe that companies may, on average, file

[[Page 15610]]

more reports on revised Form 8-K than we previously estimated. In the 
proposing release, we estimated that a company would, on average, file 
two more reports on Form 8-K per year.\155\ For purposes of the PRA, we 
now estimate that the amendments will cause, on average, an increase of 
five reports on Form 8-K per company per year. We recognize, however, 
that the actual number of reports a company must file is highly 
dependent on the nature of its activities. For example, a company with 
an active acquisition or financing program is more likely to be 
affected by these amendments than others. Thus, we expect that the 
amendments will impose a greater-than-average burden on some companies, 
and a less-than-average burden on others.
---------------------------------------------------------------------------

    \155\ During our fiscal year ended September 30, 2003, we 
received approximately 58,400 Form 8-K reports from approximately 
11,800 companies.
---------------------------------------------------------------------------

    We estimate that each entity spends, on average, approximately five 
hours completing the form. We estimate that 75% of the burden is 
prepared by the company and that 25% of the burden is prepared by 
outside counsel retained by the company at an average cost of $300 per 
hour. We estimated the average number of hours each entity spends 
completing the form, and the average hourly rate for outside securities 
counsel, by contacting a number of law firms and other persons 
regularly involved in completing the forms and based on our experience 
with disclosure on Form 8-K.
    As of the end of our 2003 fiscal year, we estimate that there were 
11,800 companies filing reports on Form 8-K.\156\ Based on our new 
estimate of five additional Form 8-K reports per company per year as a 
result of these amendments, we estimate an increase of 59,000 filings 
per year. This results in an estimate of 221,250 additional burden 
hours \157\ and a cost of approximately $22,125,000 for the services of 
outside professionals.\158\
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    \156\ 11,800 filers x 5 additional Form 8-K filings per filer = 
59,000 additional filings.
    \157\ 59,000 filings x 5 hours per filing x 0.75 = 221,250 
hours.
    \158\ 59,000 filings x 5 hours per filing x 0.25 x $300 per hour 
= $22,125,000.
---------------------------------------------------------------------------

Form 12b-25
    The proposed rules would have permitted a company unable to timely 
file a Form 8-K to report the late filing on Form 12b-25 and to receive 
an automatic two business day filing extension. In the proposing 
release, we estimated that, of the expected 61,500 filings for which 
Form 12b-25 would be available, 6,700 would be late, resulting in an 
incremental Form 12b-25 burden of 16,750 hours and a total annual 
burden of 31,750 hours. These estimates were based on the current rate 
of late filings on Form 8-K. Because we have lengthened the proposed 
Form 8-K filing deadline to four business days, we are not adopting the 
proposed Form 12b-25 amendments.
Forms 10-Q, 10-QSB, 10-K and 10-KSB
    We are transferring, in part, two disclosure requirements from 
Forms 10-Q, 10-QSB, 10-K and 10-KSB to Form 8-K. Because these items 
generally will be disclosed in the Form 8-K, companies do not have to 
repeat this disclosure in the annual and quarterly report. We estimate 
that these changes will result in a decrease of one burden hour per 
company per filing in connection with preparing and filing each 
quarterly report on Form 10-Q or 10-QSB and the annual report on Form 
10-K or 10-KSB.
Item 601 of Regulation S-K and Regulation S-B
    The revisions to Item 601 of Regulation S-K and Item 601 of 
Regulation S-B amend the exhibit tables to identify exhibits that must 
be filed with Form 8-K. We have incorporated the burden of actually 
submitting those exhibits in the estimated Form 8-K filing burden. 
These items do not, separate from the form, require any additional 
filing and thus do not add to the burden on companies. As a result, we 
do not expect any change in the total annual burden of reporting under 
these items. We assign one burden hour and no cost to Regulations S-B 
and S-K for administrative convenience to reflect the fact that these 
regulations do not impose any direct burden on companies.
    Compliance with the revised disclosure requirements is mandatory. 
There is no mandatory retention period for the information disclosed, 
and responses to the disclosure requirements will not be kept 
confidential.

IV. Costs and Benefits

A. Background

    After we proposed the amendments to Form 8-K in June 2002, Congress 
enacted the Sarbanes-Oxley Act of 2002. Section 409 of that Act, 
entitled ``Real Time Issuer Disclosures,'' states that ``[e]ach issuer 
reporting under section 13(a) or 15(d) shall disclose to the public on 
a rapid and current basis such additional information concerning 
material changes in the financial condition or operations of the issuer 
* * * as the Commission determines, by rule, is necessary or useful for 
the protection of investors and in the public interest.'' We believe 
these amendments are responsive to this provision of the Sarbanes-Oxley 
Act.
    Prior to these amendments, Form 8-K required companies to disclose 
eight enumerated events within five business days or 15 calendar days, 
depending on the event. These amendments decrease this filing deadline 
to four business days after the event occurs for all events, other than 
Item 8.01 (current Item 5), which has no deadline, Item 7.01 (current 
Item 9), relating to Regulation FD disclosures and certain exhibits. 
The amendments also add 10 new events that would trigger a Form 8-K 
filing requirement, including two items transferred from the periodic 
reports. The amendments reorganize the Form 8-K items, create a limited 
safe harbor from liability under Exchange Act Section 10(b) and Rule 
10b-5 for failure to file certain items, and provide limited relief 
from loss of eligibility to use Forms S-2 and S-3 for failure to file a 
Form 8-K on a timely basis. These changes will affect all companies 
reporting under Section 13(a) and 15(d) of the Exchange Act, other than 
foreign private issuers that file annual reports on Form 20-F \159\ or 
40-F.\160\
---------------------------------------------------------------------------

    \159\ 17 CFR 249.220f.
    \160\ 17 CFR 249.240f.
---------------------------------------------------------------------------

B. Benefits

    Markets rely on timely dissemination of information to accurately 
and quickly value securities. These amendments increase the amount of 
significant information that a company must disclose to the public on a 
current basis, enhancing the ability of markets to respond to those 
corporate events. Under the prior system, predicated primarily on a 
periodic reporting system, the securities of a company could be trading 
on less complete information if an important corporate event has 
occurred but the company, under no duty to report that event, does not 
report the event on a timely basis. Such a delay in disclosure permits 
there to be significant time periods during which important information 
is not disclosed to the market. These circumstances create opportunity 
for companies and those with access to non-public information to misuse 
that information. The amendments adopted today will reduce such 
opportunities for misuse.
    Modern computer and communications systems enable current 
disclosure to be analyzed and incorporated into the price of a security

[[Page 15611]]

quickly. By moving our rules towards a system emphasizing current 
reporting, our markets may become more effective as price discovery 
mechanisms during periods between periodic reports.
    In addition, these amendments should enhance investor confidence in 
the financial markets. The requirement of enhanced, timely disclosure 
should raise investors' expectations regarding the amount and timing of 
information that reporting companies must make available to the public. 
Confidence in the expectation of such enhanced disclosure should 
provide more certainty to those investors that they are making 
investment decisions in a more transparent market, which should reduce 
market volatility as a result of uncertainty of the availability of 
accurate timely information about public companies.

C. Costs

    Based on a review of approximately 68,000 Form 8-K filings, 
approximately 74% of those reports were filed within four business days 
of the reported event date. Although this review did not investigate 
whether filers reported the correct event date for each filing, it 
appears that most companies already file their Form 8-K reports within 
the new four-business-day timeframe. In addition, we believe that 
several of our recent rulemakings have caused companies to improve 
their internal processes for ensuring that material information is 
reported to management in a more timely manner. For example, we adopted 
rules requiring certain executive officers to certify that they have 
designed disclosure controls and procedures, or caused such controls 
and procedures to be designed, to ensure that material information 
about the company is reported to those executive officers.\161\ Thus, 
we believe that companies will be able to comply with the four business 
day deadline without undue burden. Although we found, at the proposing 
stage, that the majority of filings were made within two calendar days, 
we recognize that some items may be more difficult to report in a 
timely manner. Rather than complicate the Form 8-K reporting framework 
by establishing multiple deadlines, we have decided to extend the 
proposed deadline to four business days.
---------------------------------------------------------------------------

    \161\ Release No. 33-8124 (August 28, 2002) [67 FR 57276].
---------------------------------------------------------------------------

    We expect that the addition of new Form 8-K items will increase the 
number of Form 8-Ks that a company is required to file. Based on our 
estimates for purposes of the PRA, we expect approximately five 
additional filings per year per company. Assuming a value of $100 per 
hour for company time, we estimate an increase of approximately $44 
million in filing costs associated with Form 8-K due to the adoption of 
these amendments.
    Companies may experience some competitive or other strategic costs 
caused by the requirement to disclose more categories of information 
more quickly than they otherwise may have chosen to disclose. These 
costs are difficult to quantify. Further, we are sensitive to the 
argument that these enhanced disclosure requirements may increase a 
company's exposure to liability. Thus, we are adopting a new limited 
safe harbor from liability under Exchange Act Section 10(b) and Rule 
10b-5 for failure to file a report on Form 8-K within the stated 
deadline for certain events. We are also eliminating any duplicative 
reporting requirements in annual and quarterly reports. In addition, 
developments such as EDGARLink that enable a company to file reports 
easily and directly with the Commission over the Internet,\162\ without 
the added costs of using third parties to submit filings, as well as 
the industry's increased experience over the past several years using 
the EDGAR system, should minimize the cost to companies of filing more 
Form 8-K reports in a shorter timeframe.
---------------------------------------------------------------------------

    \162\ EDGARLink is downloadable free of charge to filers from 
our Web site at https://www.edgarfiling.sec.gov.
---------------------------------------------------------------------------

V. Effect on Efficiency, Competition and Capital Formation

    Section 23(a)(2) \163\ of the Exchange Act requires us, when 
adopting rules under the Exchange Act, to consider the impact that any 
new rule would have on competition. In addition, Section 23(a)(2) 
prohibits us from adopting any rule that would impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Exchange Act.
---------------------------------------------------------------------------

    \163\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    Section 2(b) \164\ of the Securities Act and Section 3(f) \165\ of 
the Exchange Act require us, when engaging in rulemaking where we are 
required to consider or determine whether an action is necessary or 
appropriate in the public interest, to consider, in addition to the 
protection of investors, whether the action will promote efficiency, 
competition and capital formation.
---------------------------------------------------------------------------

    \164\ 15 U.S.C. 77b(b).
    \165\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    The amendments are intended to improve the amount, quality and 
timeliness of current information available to investors and the 
financial markets. This should improve the ability of investors to make 
informed investment and voting decisions. Informed investor decisions 
generally promote market efficiency and capital formation. Thus, we 
anticipate that these amendments will enhance the proper functioning of 
the capital markets. This increases the competitiveness of companies 
participating in the U.S. capital markets. Because only domestic 
companies subject to the reporting requirements of Sections 13 and 15 
of the Exchange Act are required to make Form 8-K disclosures, 
competitors not subject to those reporting requirements potentially 
could gain an informational advantage. The possibility of these effects 
and their magnitude if they were to occur are difficult to quantify.
    We requested comment on whether the proposed amendments, if 
adopted, would impose a burden on competition or, conversely, promote 
efficiency, competition and capital formation. Numerous commenters 
believed that a requirement to disclose non-binding agreements and 
letters of intent would cause companies competitive harm. Similarly, 
commenters believed that a disclosure requirement regarding the 
termination of a material agreement or loss of a significant customer 
may place the party required to make such disclosures at a competitive 
disadvantage to the counterparty.
    In response to these comments, we have eliminated the proposed 
disclosure requirement regarding nonbinding agreements and letters of 
intent. We have also eliminated the proposed item regarding the loss of 
a significant customer due to the difficulty of identifying the 
particular date on which such loss occurs. With regard to the 
termination of a material agreement, we have revised the relevant item 
to provide a company with more flexibility if it believes that the 
counterparty is merely using a claim of termination as a negotiation 
ploy, contrary to the terms of the contract.
    Several commenters recommended that we revise the eligibility rules 
under Forms S-2 and S-3 so that an untimely filing of a report on Form 
8-K would not result in the loss of such eligibility. Loss of such 
eligibility can significantly restrict the ability of a company to 
raise capital and may be a disproportionately large negative 
consequence of an untimely filing of a Form 8-K. Although we believe it 
is important that a company provide full disclosure when it seeks to 
raise capital in public markets, we also recognize that the shortened 
timeframes for certain of the Form 8-K items may increase the number of 
companies that could lose

[[Page 15612]]

eligibility under Forms S-2 and S-3. As a result, we have revised the 
form eligibility rules to allow a company to use Forms S-2 and S-3 
despite the filing of an untimely Form 8-K for certain enumerated items 
of the form. A company would still need to be current in these Form 8-K 
reports, however, prior to the filing of a Form S-2 or Form S-3 
registration statement. This ensures that when the company files its 
registration statement, required information under the enumerated items 
has been publicly disclosed.
    Other commenters believed that the volume of reporting that would 
be required under the amendments may create a considerable distraction 
for management, which may hinder a company from operating efficiently. 
We have attempted to limit the new items required to be reported on 
Form 8-K to unquestionably or presumptively material events. For 
example, many of the items cover events that happen rarely to a 
company, such as delisting from an national securities exchange, 
bankruptcy and restatements of financial statements. Others items are 
limited by their terms. For example, Item 1.01 requires disclosure only 
of material definitive agreements outside the ordinary course of 
business, excluding many types of ordinary course contracts.

VI. Final Regulatory Flexibility Analysis

    This Final Regulatory Flexibility Analysis, or FRFA, has been 
prepared in accordance with the Regulatory Flexibility Act (RFA).\166\ 
This FRFA involves amendments to shorten the filing deadline for Form 
8-K and expand the events requiring disclosure on the form. An Initial 
Regulatory Flexibility Analysis (IRFA) was prepared in accordance with 
the Regulatory Flexibility Act in conjunction with the proposing 
release. The proposing release included and solicited comment on the 
IRFA.
---------------------------------------------------------------------------

    \166\ 5 U.S.C. 603.
---------------------------------------------------------------------------

A. Need for the Amendments

    We are adopting the amendments to Form 8-K to provide investors and 
the securities markets with more timely access to a greater range of 
information concerning significant corporate events than is currently 
required by Form 8-K. The amendments to Form 8-K increase the list of 
events that trigger a Form 8-K filing requirement and require most Form 
8-K reports to be filed no later than the fourth business day following 
occurrence of the event to which the report relates. The amendments 
should enhance investor confidence in the fairness and integrity of the 
securities markets by requiring companies to provide more current 
disclosure about several significant corporate events. In addition to 
accelerating the filing deadlines for events that already trigger the 
Form 8-K filing requirements, the proposals would expand the types of 
information covered by Form 8-K.

B. Significant Issues Raised by Public Comment

    No comments were raised specifically about the IRFA. However, 
several commenters recommended that small business issuers be afforded 
relief from the new reporting requirements, such as being granted 
longer filing deadlines because they do not have the same resources as 
larger issuers. Because we believe that different compliance or 
reporting requirements or timetables for small entities would interfere 
with the goal of making information about significant corporate events 
promptly available to investors and the markets, as discussed more 
fully below, we have generally not differentiated between small issuers 
and other issuers in the amendments to Form 8-K.

C. Small Entities Subject to the Amendments

    The amendments to Form 8-K will affect issuers that are small 
entities. Exchange Act Rule 0-10(a) \167\ defines an issuer, other than 
an investment company, to be a ``small business'' or ``small 
organization'' if it had total assets of $5 million or less on the last 
day of its most recent fiscal year. We estimate that there are 
approximately 2,500 issuers, other than investment companies, that may 
be considered small entities. The amendments to Form 8-K apply to any 
small entity that is subject to Exchange Act reporting requirements.
---------------------------------------------------------------------------

    \167\ 17 CFR 240.0-10(a).
---------------------------------------------------------------------------

D. Reporting, Recordkeeping and Other Compliance Requirements

    Form 8-K previously consisted of 12 disclosure items. The 
amendments add 10 new disclosure items, including two transferred from 
annual and quarterly reports. All small entities that are subject to 
the reporting requirements of Exhange Act Sections 13(a) or 15(d) are 
subject to these amendments. Because reporting companies already file 
Form 8-K for certain events, no additional professional skills beyond 
those currently possessed by these filers is necessary to prepare the 
form for the new disclosure items.
    We expect that reporting of these new disclosure items will 
increase costs incurred by small entities because they will have to 
file Form 8-K more frequently. We have calculated for purposes of the 
PRA that each filer, including a small entity, will be subject to an 
added annual reporting burden of approximately 18.75 hours \168\ and an 
estimated annual average cost of $1,875 \169\ for disclosure assistance 
from outside counsel as a result of the amendments.
---------------------------------------------------------------------------

    \168\ 5 filings x 5 hours per filing x 0.75 = 18.75 hours.
    \169\ 5 filings x 5 hours/filing x 0.25 x $300/hour = $1,875.
---------------------------------------------------------------------------

E. Agency Action To Minimize Effect on Small Entities

    The RFA directs us to consider significant alternatives that would 
accomplish the stated objective, while minimizing any significant 
adverse impact on small entity issuers. In connection with the proposed 
revisions to Form 8-K, we considered the following alternatives: (a) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (b) the clarification, consolidation, or simplification of 
Form 8-K reporting requirements for small entities; (c) the use of 
performance rather than design standards; and (d) an exemption from 
coverage of the Form 8-K requirements, or any part thereof, for small 
entities.
    We do not believe that small issuers will have to report more 
frequently than other issuers or disclose more information in their 
forms. We believe that different compliance or reporting requirements 
or timetables for small entities would interfere with achieving the 
primary goal of making information about significant corporate events 
promptly available to investors and the public securities markets. We 
also think that the current and proposed Form 8-K disclosure 
requirements are clear and straightforward. They generally require 
brief disclosure indicating that a specific significant corporate event 
has occurred. Thus, it does not seem necessary to develop separate 
requirements for small entities.
    We recognize, however, that small entities are more likely to 
participate in securities offerings that constitute a relatively large 
percentage of their outstanding securities because such entities often 
do not have many securities outstanding. As a result, with regard to 
unregistered sales of equity securities, we are adopting a higher 
numeric threshold for disclosure. In the

[[Page 15613]]

case of small business issuers, which include small entities, such 
issuers must disclose unregistered sales of equity securities if the 
sale represents a threshold of 5% of the company's outstanding shares, 
rather than the 1% threshold applied to other companies.
    The nature of the required disclosures under other items do not 
generally lend themselves to numeric thresholds that can reliably 
represent presumptively material occurrences. Thus, similar 
distinctions have not been applied to other items. We have used design 
rather than performance standards in connection with the Form 8-K 
amendments. This is because we want this disclosure to appear in a 
specific type of disclosure filing so that investors will know where to 
find information about specific significant corporate events. We also 
want the Form 8-K information to be filed electronically using the 
EDGAR filing system to facilitate dissemination of information to 
markets and the public. We do not believe that performance standards 
for small entities would be consistent with the purpose of the 
amendments.

VII. Statutory Basis

    We are adopting the amendments pursuant to Sections 7, 10 and 19 of 
the Securities Act, as amended, and Sections 10, 12, 13, 15 and 23 of 
the Securities Exchange Act, as amended.

Text of the Amendments

List of Subjects

17 CFR Part 228

    Reporting and recordkeeping requirements, Securities, Small 
businesses.

17 CFR Parts 229, 230 and 239

    Reporting and recordkeeping requirements, Securities.

17 CFR Part 240

    Brokers, Confidential business information, Fraud, Reporting and 
recordkeeping requirements, Securities.

17 CFR Part 249

    Brokers, Reporting and recordkeeping requirements, Securities.

0
For the reasons set out in the preamble, title 17, chapter II of the 
Code of Federal Regulations is amended as follows.

PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS

0
1. The authority citation for Part 228 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 
77sss, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 78mm, 80a-8, 80a-29, 
80a-30, 80a-37, 80b-11, and 7201 et seq.; and 18 U.S.C. 1350.

* * * * *

0
2. Amend Sec.  228.601 by:
0
a. Revising the exhibit table;
0
b. Adding text to paragraph (b)(7); and
0
c. Revising paragraphs (b)(3) and (b)(17).
    The revisions and addition read as follows:


Sec.  228.601 (Item 601)  Exhibits.

    (a) * * *
BILLING CODE 8010-01-P

[[Page 15614]]

[GRAPHIC] [TIFF OMITTED] TR25MR04.092

BILLING CODE 8010-01-C

[[Page 15615]]

    (b) * * *
    (3) Articles of incorporation and bylaws. (i) A complete copy of 
the articles of incorporation. Whenever the small business issuer files 
an amendment to its articles of incorporation, it must file a complete 
copy of the articles as amended. However, if such amendment is being 
reported on Form 8-K (Sec.  249.308 of this chapter), the small 
business issuer is required to file only the text of the amendment as a 
Form 8-K exhibit. In such case, a complete copy of the articles of 
incorporation as amended must be filed as an exhibit to the next 
Securities Act registration statement or periodic report filed by the 
small business issuer to which this exhibit requirement applies.
    (ii) A complete copy of the bylaws. Whenever the small business 
issuer files an amendment to its bylaws, it must file a complete copy 
of the bylaws as amended. However, if such amendment is being reported 
on Form 8-K (Sec.  249.308 of this chapter), the small business issuer 
is required to file only the text of the amendment as a Form 8-K 
exhibit. In such cases, a complete copy of the bylaws as amended must 
be filed as an exhibit to the next Securities Act registration 
statement or periodic report filed by the small business issuer to 
which this exhibit requirement applies.
* * * * *
    (7) Correspondence from an independent accountant regarding non-
reliance on a previously issued audit report or completed interim 
review. Any written notice from the small business issuer's current or 
previously engaged independent accountant that the independent 
accountant is withdrawing a previously issued audit report or that a 
previously issued audit report or completed interim review, covering 
one or more years or interim periods for which the small business 
issuer is required to provide financial statements under this 
Regulation S-B, should no longer be relied upon. In addition, any 
letter, pursuant to Item 4.02(c) of Form 8-K (Sec.  249.308 of this 
chapter), from the independent accountant to the Commission stating 
whether the independent accountant agrees with the statements made by 
the small business issuer describing the events giving rise to the 
notice.
* * * * *
    (17) Correspondence on departure of director. Any written 
correspondence from a former director concerning the circumstances 
surrounding the former director's retirement, resignation, refusal to 
stand for re-election or removal, including any letter from the former 
director to the small business issuer stating whether the former 
director agrees with statements made by the small business issuer 
describing the former director's departure.
* * * * *

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
CONSERVATION ACT OF 1975--REGULATION S-K

0
3. The general authority citation for Part 229 is revised to read as 
follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 
77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 
78mm, 79e, 79j, 79n, 79t, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-
31(c), 80a-37, 80a-38(a), 80a-39, 80b-11, and 7201 et seq.; and 18 
U.S.C. 1350, unless otherwise noted.

* * * * *

0
4. Amend Sec.  229.601 by:
0
a. Revising the exhibit table;
0
b. Adding text to paragraph (b)(7); and
0
c. Revising paragraphs (b)(3) and (b)(17).
    The revisions and addition read as follows:


Sec.  229.601 (Item 601)  Exhibits.

    (a) * * *
Instructions to the Exhibit Table
BILLING CODE 8010-01-P

[[Page 15616]]

[GRAPHIC] [TIFF OMITTED] TR25MR04.093

BILLING CODE 8010-01-C

[[Page 15617]]

    (b) * * *
    (3)(i) Articles of incorporation. The articles of incorporation of 
the registrant or instruments corresponding thereto as currently in 
effect and any amendments thereto. Whenever the registrant files an 
amendment to its articles of incorporation, it must file a complete 
copy of the articles as amended. However, if such amendment is being 
reported on Form 8-K (Sec.  249.308 of this chapter), the registrant is 
required to file only the text of the amendment as a Form 8-K exhibit. 
In such case, a complete copy of the articles of incorporation as 
amended must be filed as an exhibit to the next Securities Act 
registration statement or periodic report filed by the registrant to 
which this exhibit requirement applies. Where it is impracticable for 
the registrant to file a charter amendment authorizing new securities 
with the appropriate state authority prior to the effective date of the 
registration statement registering such securities, the registrant may 
file as an exhibit to the registration statement the form of amendment 
to be filed with the state authority. In such a case, if material 
changes are made after the copy is filed, the registrant must also file 
the changed copy.
    (ii) Bylaws. The bylaws of the registrant or instruments 
corresponding thereto as currently in effect and any amendments 
thereto. Whenever the registrant files an amendment to the bylaws, it 
must file a complete copy of the amended bylaws. However, if such 
amendment is being reported on Form 8-K (Sec.  249.308 of this 
chapter), the registrant is required to file only the text of the 
amendment as a Form 8-K exhibit. In such case, a complete copy of the 
bylaws as amended must be filed as an exhibit to the next Securities 
Act registration statement or periodic report filed by the registrant 
to which this exhibit requirement applies.
* * * * *
    (7) Correspondence from an independent accountant regarding non-
reliance on a previously issued audit report or completed interim 
review. Any written notice from the registrant's current or previously 
engaged independent accountant that the independent accountant is 
withdrawing a previously issued audit report or that a previously 
issued audit report or completed interim review, covering one or more 
years or interim periods for which the registrant is required to 
provide financial statements under Regulation S-X (part 210 of this 
chapter), should no longer be relied upon. In addition, any letter, 
pursuant to Item 4.02(c) of Form 8-K (Sec.  249.308 of this chapter), 
from the independent accountant to the Commission stating whether the 
independent accountant agrees with the statements made by the 
registrant describing the events giving rise to the notice.
* * * * *
    (17) Correspondence on departure of director. Any written 
correspondence from a former director concerning the circumstances 
surrounding the former director's retirement, resignation, refusal to 
stand for re-election or removal, including any letter from the former 
director to the registrant stating whether the former director agrees 
with statements made by the registrant describing the former director's 
departure.
* * * * *

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

0
5. The authority citation for part 230 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 
77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78t, 78w, 
78ll(d), 78mm, 79t, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-
37, unless otherwise noted.
* * * * * *

0
6. Amend Sec.  230.144 by revising paragraph (c)(1) to read as follows:


Sec.  230.144  Persons deemed not to be engaged in a distribution and 
therefore not underwriters.

* * * * *
    (c) * * *
    (1) Filing of reports. The issuer has securities registered 
pursuant to section 12 of the Securities Exchange Act of 1934, has been 
subject to the reporting requirements of section 13 of that Act for a 
period of at least 90 days immediately preceding the sale of the 
securities and has filed all the reports required to be filed 
thereunder during the 12 months preceding such sale (or for such 
shorter period that the issuer was required to file such reports), 
other than Form 8-K reports (Sec.  249.308 of this chapter); or has 
securities registered pursuant to the Securities Act of 1933, has been 
subject to the reporting requirements of section 15(d) of the 
Securities Exchange Act of 1934 for a period of at least 90 days 
immediately preceding the sale of the securities and has filed all the 
reports required to be filed thereunder during the 12 months preceding 
such sale (or for such shorter period that the issuer was required to 
file such reports), other than Form 8-K reports (Sec.  249.308 of this 
chapter). The person for whose account the securities are to be sold 
shall be entitled to rely upon a statement in whichever is the most 
recent report, quarterly or annual, required to be filed and filed by 
the issuer that such issuer has filed all reports required to be filed 
by section 13 or 15(d) of the Securities Exchange Act of 1934 during 
the preceding 12 months (or for such shorter period that the issuer was 
required to file such reports), other than Form 8-K reports (Sec.  
249.308 of this chapter), and has been subject to such filing 
requirements for the past 90 days, unless he knows or has reason to 
believe that the issuer has not complied with such requirements. Such 
person shall also be entitled to rely upon a written statement from the 
issuer that it has complied with such reporting requirements unless he 
knows or has reasons to believe that the issuer has not complied with 
such requirements.
* * * * *

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

0
7. The authority citation for part 239 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 
78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 
79l, 79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-26, 80a-29, 80a-30, and 
80a-37, unless otherwise noted.
* * * * *

0
8. Amend Sec.  239.12 by revising paragraph (c)(2) to read as follows:


Sec.  239.12  Form S-2, for registration under the Securities Act of 
1933 of securities of certain issuers.

* * * * *
    (c) * * *
    (2) Has filed in a timely manner all reports required to be filed 
during the twelve calendar months and any portion of a month 
immediately preceding the filing of the registration statement, other 
than a report that is required solely pursuant to Item 1.01, 1.02, 
2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K (Sec.  249.308 of this 
chapter). If the registrant has used (during the twelve calendar months 
and any portion of a month immediately preceding the filing of the 
registration statement) Sec.  240.12b-25(b) of this chapter with 
respect to a report or a portion of a report, that report or portion 
thereof has actually been filed within the time period prescribed by 
that section; and
* * * * *

0
9. Amend Form S-2 (referenced in Sec.  239.12) by revising General 
Instruction I.(C) to read as follows:

    Note.--The text of Form S-2 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

[[Page 15618]]

Form S-2--Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

    I. * * *
    C. The registrant:
    (1) Has been subject to the requirements of Section 12 or 15(d) of 
the Exchange Act and has filed all the material required to be filed 
pursuant to Section 12, 14 or 15(d) for a period of at least thirty-six 
calendar months immediately preceding the filing of the registration 
statement on this Form; and
    (2) has filed in a timely manner all reports required to be filed 
during the twelve calendar months and any portion of a month 
immediately preceding the filing of the registration statement, other 
than a report that is required solely pursuant to Item 1.01, 1.02, 
2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K (Sec.  249.308 of this 
chapter). If the registrant has used (during the twelve calendar months 
and any portion of a month immediately preceding the filing of the 
registration statement) Rule 12b-25(b) (Sec.  240.12b-25(b) of this 
chapter) under the Exchange Act with respect to a report or a portion 
of a report, that report or portion thereof has actually been filed 
within the time period prescribed by that rule.
* * * * *

0
10. Amend Sec.  239.13 by removing the authority citation following the 
section and revising paragraph (a)(3)(ii) to read as follows:


Sec.  239.13  Form S-3, for registration under the Securities Act of 
1933 of securities of certain issuers offered pursuant to certain types 
of transactions.

* * * * *
    (a) * * *
    (3) * * *
    (ii) Has filed in a timely manner all reports required to be filed 
during the twelve calendar months and any portion of a month 
immediately preceding the filing of the registration statement, other 
than a report that is required solely pursuant to Item 1.01, 1.02, 
2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K (Sec.  249.308 of this 
chapter). If the registrant has used (during the twelve calendar months 
and any portion of a month immediately preceding the filing of the 
registration statement) Sec.  240.12b-25(b) of this chapter with 
respect to a report or a portion of a report, that report or portion 
thereof has actually been filed within the time period prescribed by 
that section; and
* * * * *

0
11. Amend Form S-3 (referenced in Sec.  239.13) by revising General 
Instruction I.A.3 to read as follows:


    Note.-- The text of Form S-3 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form S-3--Registration Statement Under the Securities Act of 1933

* * * * *

General Instructions

    I. * * *
    A. * * *
    3. The registrant:
    (a) Has been subject to the requirements of Section 12 or 15(d) of 
the Exchange Act and has filed all the material required to be filed 
pursuant to Section 12, 14 or 15(d) for a period of at least twelve 
calendar months immediately preceding the filing of the registration 
statement on this Form; and
    (b) has filed in a timely manner all reports required to be filed 
during the twelve calendar months and any portion of a month 
immediately preceding the filing of the registration statement, other 
than a report that is required solely pursuant to Item 1.01, 1.02, 
2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 8-K (Sec.  249.308 of this 
chapter). If the registrant has used (during the twelve calendar months 
and any portion of a month immediately preceding the filing of the 
registration statement) Rule 12b-25(b) (Sec.  240.12b-25(b) of this 
chapter) under the Exchange Act with respect to a report or a portion 
of a report, that report or portion thereof has actually been filed 
within the time period prescribed by that rule.
* * * * *

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
12. The authority citation for part 240 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 
78w, 78x, 78ll, 78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-
3, 80b-4, 80b-11, and 7201 et seq.; and 18 U.S.C. 1350, unless 
otherwise noted.

* * * * *

0
13. Amend Sec.  240.12b-23 by revising paragraphs (a)(3)(i) and (ii) 
and adding paragraph (a)(3)(iii) to read as follows:


Sec.  240.12b-23  Incorporation by reference.

* * * * *
    (a) * * *
    (3) * * *
    (i) A proxy or information statement incorporated by reference in 
response to Part III of Form 10-K and Form 10-KSB (17 CFR 249.310 and 
249.310b);
    (ii) A form of prospectus filed pursuant to 17 CFR 230.424(b) 
incorporated by reference in response to Item 1 of Form 8-A (17 CFR 
249.208a); and
    (iii) Information filed on Form 8-K (17 CFR 249.308) need not be 
filed as an exhibit.
* * * * *

0
14. Amend Sec.  240.13a-10 by revising Note 1 at the end of the section 
to read as follows:


Sec.  240.13a-10  Transition reports.

* * * * *

    Note 1: In addition to the report or reports required to be 
filed pursuant to this section, every issuer, except a foreign 
private issuer or an investment company required to file reports 
pursuant to Sec.  270.30b1-1 of this chapter, that changes its 
fiscal closing date is required to file a Form 8-K (Sec.  249.308 of 
this chapter) report that includes the information required by Item 
5.03 of Form 8-K within the period specified in General Instruction 
B.1. to that form.

* * * * *

0
15. Amend Sec.  240.13a-11 by adding paragraph (c) to read as follows:


Sec.  240.13a-11  Current reports on Form 8-K (Sec.  249.308 of this 
chapter).

* * * * *
    (c) No failure to file a report on Form 8-K that is required solely 
pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 
8-K shall be deemed to be a violation of 15 U.S.C. 78j(b) and Sec.  
240.10b-5.

0
16. Amend Sec.  240.15d-10 by revising Note 1 at the end of the section 
to read as follows:


Sec.  240.15d-10  Transition reports.

* * * * *

    Note 1: In addition to the report or reports required to be 
filed pursuant to this section, every issuer, except a foreign 
private issuer or an investment company required to file reports 
pursuant to Sec.  270.30b1-1 of this chapter, that changes its 
fiscal closing date is required to file a Form 8-K (Sec.  249.308 of 
this chapter) report that includes the information required by Item 
5.03 of Form 8-K within the period specified in General Instruction 
B.1. to that form.

* * * * *

0
17. Amend Sec.  240.15d-11 by adding paragraph (c) to read as follows:


Sec.  240.15d-11  Current reports on Form 8-K (Sec.  249.308 of this 
chapter).

* * * * *
    (c) No failure to file a report on Form 8-K that is required solely 
pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 or 4.02(a) of Form 
8-K shall be deemed to

[[Page 15619]]

be a violation of 15 U.S.C. 78j(b) and Sec.  240.10b-5.

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
18. The authority citation for part 249 continues to read in part as 
follows:

    Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; and 18 U.S.C. 
1350, unless otherwise noted.
* * * * *

0
19. Amend Form 8--K (referenced in Sec.  249.308) by:
0
a. Adding the ``check the appropriate box'' paragraph directly above 
the General Instructions on the cover page;
0
b. Revising the heading for General Instruction A, designating the 
current text as paragraph 1 and adding paragraph 2;
0
c. Revising General Instruction B; and
0
d. Revising all of the items appearing under the caption ``Information 
to Be Included in the Report'' after the General Instructions.
    The revisions and addition read as follows:

    Note. --The text of Form 8-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 8-K--Current Report Pursuant to Section 13 or 15(d) of the 
Securities Exchange Act of 1934

* * * * *
    Check the appropriate box below if the Form 8-K filing is intended 
to simultaneously satisfy the filing obligation of the registrant under 
any of the following provisions (see General Instruction A.2. below):

[ ] Written communications pursuant to Rule 425 under the Securities 
Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12(b) under the Exchange 
Act (17 CFR 240.14a-12(b))
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the 
Exchange Act (17 CFR 240.14d-2(b))

General Instructions

A. Rules as to Use of Form 8-K.
    1. * * *
    2. Form 8-K may be used by a registrant to satisfy its filing 
obligations pursuant to Rule 425 under the Securities Act, regarding 
written communications related to business combination transactions, or 
Rules 14a-12(b) or Rule 14d-2(b) under the Exchange Act, relating to 
soliciting materials and pre-commencement communications pursuant to 
tender offers, respectively, provided that the Form 8-K filing 
satisfies all the substantive requirements of those rules (other than 
the Rule 425(c) requirement to include certain specified information in 
any prospectus filed pursuant to such rule). Such filing is also deemed 
to be filed pursuant to any rule for which the box is checked. A 
registrant is not required to check the box in connection with Rule 
14a-12(b) or Rule 14d-2(b) if the communication is filed pursuant to 
Rule 425. Communications filed pursuant to Rule 425 are deemed filed 
under the other applicable sections. See Note 2 to Rule 425, Rule 14a-
12(b) and Instruction 2 to Rule 14d-2(b)(2).
B. Events To Be Reported and Time for Filing of Reports.
    1. A report on this form is required to be filed or furnished, as 
applicable, upon the occurrence of any one or more of the events 
specified in the items in Sections 1-6 and 9 of this form. Unless 
otherwise specified, a report is to be filed or furnished within four 
business days after occurrence of the event. If the event occurs on a 
Saturday, Sunday or holiday on which the Commission is not open for 
business, then the four business day period shall begin to run on, and 
include, the first business day thereafter. A registrant either 
furnishing a report on this form under Item 7.01 (Regulation FD 
Disclosure) or electing to file a report on this form under Item 8.01 
(Other Events) solely to satisfy its obligations under Regulation FD 
(17 CFR 243.100 and 243.101) must furnish such report or make such 
filing, as applicable, in accordance with the requirements of Rule 
100(a) of Regulation FD (17 CFR 243.100(a)), including the deadline for 
furnishing or filing such report.
    2. The information in a report furnished pursuant to Item 2.02 
(Results of Operations and Financial Condition) or Item 7.01 
(Regulation FD Disclosure) shall not be deemed to be ``filed'' for 
purposes of Section 18 of the Exchange Act or otherwise subject to the 
liabilities of that section, unless the registrant specifically states 
that the information is to be considered ``filed'' under the Exchange 
Act or incorporates it by reference into a filing under the Securities 
Act or the Exchange Act. If a report on Form 8-K contains disclosures 
under Item 2.02 or Item 7.01, whether or not the report contains 
disclosures regarding other items, all exhibits to such report relating 
to Item 2.02 or Item 7.01 will be deemed furnished, and not filed, 
unless the registrant specifies, under Item 9.01 (Financial Statements 
and Exhibits), which exhibits, or portions of exhibits, are intended to 
be deemed filed rather than furnished pursuant to this instruction.
    3. If the registrant previously has reported substantially the same 
information as required by this form, the registrant need not make an 
additional report of the information on this form. To the extent that 
an item calls for disclosure of developments concerning a previously 
reported event or transaction, any information required in the new 
report or amendment about the previously reported event or transaction 
may be provided by incorporation by reference to the previously filed 
report. The term previously reported is defined in Rule 12b-2 (17 CFR 
240.12b-2).
    4. Copies of agreements, amendments or other documents or 
instruments required to be filed pursuant to Form 8-K are not required 
to be filed or furnished as exhibits to the Form 8-K unless 
specifically required to be filed or furnished by the applicable Item. 
This instruction does not affect the requirement to otherwise file such 
agreements, amendments or other documents or instruments, including as 
exhibits to registration statements and periodic reports pursuant to 
the requirements of Item 601 of Regulation S-K or Item 601 of 
Regulation S-B, as applicable.
    5. When considering current reporting on this form, particularly of 
other events of material importance pursuant to Item 7.01 (Regulation 
FD Disclosure) and Item 8.01 (Other Events), registrants should have 
due regard for the accuracy, completeness and currency of the 
information in registration statements filed under the Securities Act 
which incorporate by reference information in reports filed pursuant to 
the Exchange Act, including reports on this form.
    6. A registrant's report under Item 7.01 (Regulation FD Disclosure) 
or Item 8.01 (Other Events) will not be deemed an admission as to the 
materiality of any information in the report that is required to be 
disclosed solely by Regulation FD.
* * * * *

Information To Be Included in the Report

Section 1--Registrant's Business and Operations

Item 1.01 Entry into a Material Definitive Agreement.
    (a) If the registrant has entered into a material definitive 
agreement not made in the ordinary course of business of the 
registrant, or into any amendment of such agreement that is material to 
the registrant, disclose the following information:
    (1) The date on which the agreement was entered into or amended, 
the identity of the parties to the agreement

[[Page 15620]]

or amendment and a brief description of any material relationship 
between the registrant or its affiliates and any of the parties, other 
than in respect of the material definitive agreement or amendment; and
    (2) A brief description of the terms and conditions of the 
agreement or amendment that are material to the registrant.
    (b) For purposes of this Item 1.01, a material definitive agreement 
means an agreement that provides for obligations that are material to 
and enforceable against the registrant, or rights that are material to 
the registrant and enforceable by the registrant against one or more 
other parties to the agreement, in each case whether or not subject to 
conditions.
    Instructions.
    1. Any material definitive agreement of the registrant not made in 
the ordinary course of the registrant's business must be disclosed 
under this Item 1.01. An agreement is deemed to be not made in the 
ordinary course of a registrant's business even if the agreement is 
such as ordinarily accompanies the kind of business conducted by the 
registrant if it involves the subject matter identified in Item 
601(b)(10)(ii)(A)-(D) of Regulation S-K (17 CFR 229.601(b)(10)(ii)(A)-
(D)). An agreement involving the subject matter identified in Item 
601(b)(10)(iii)(A) or (B) also must be disclosed unless Item 
601(b)(10)(iii)(C) would not require the registrant to file a material 
agreement involving the same subject matter as an exhibit.
    2. A registrant must provide disclosure under this Item 1.01 if the 
registrant succeeds as a party to the agreement or amendment to the 
agreement by assumption or assignment (other than in connection with a 
merger or acquisition or similar transaction).
Item 1.02 Termination of a Material Definitive Agreement
    (a) If a material definitive agreement which was not made in the 
ordinary course of business of the registrant and to which the 
registrant is a party is terminated otherwise than by expiration of the 
agreement on its stated termination date, or as a result of all parties 
completing their obligations under such agreement, and such termination 
of the agreement is material to the registrant, disclose the following 
information:
    (1) The date of the termination of the material definitive 
agreement, the identity of the parties to the agreement and a brief 
description of any material relationship between the registrant or its 
affiliates and any of the parties other than in respect of the material 
definitive agreement;
    (2) a brief description of the terms and conditions of the 
agreement that are material to the registrant;
    (3) A brief description of the material circumstances surrounding 
the termination; and
    (4) Any material early termination penalties incurred by the 
registrant.
    (b) For purposes of this Item 1.02, the term material definitive 
agreement shall have the same meaning as set forth in Item 1.01(b).
    Instructions.
    1. No disclosure is required solely by reason of this Item 1.02 
during negotiations or discussions regarding termination of a material 
definitive agreement unless and until the agreement has been 
terminated.
    2. No disclosure is required solely by reason of this Item 1.02 if 
the registrant believes in good faith that the material definitive 
agreement has not been terminated, unless the registrant has received a 
notice of termination pursuant to the terms of agreement.
Item 1.03 Bankruptcy or Receivership
    (a) If a receiver, fiscal agent or similar officer has been 
appointed for a registrant or its parent, in a proceeding under the 
Bankruptcy Act or in any other proceeding under state or federal law in 
which a court or governmental authority has assumed jurisdiction over 
substantially all of the assets or business of the registrant or its 
parent, or if such jurisdiction has been assumed by leaving the 
existing directors and officers in possession but subject to the 
supervision and orders of a court or governmental authority, disclose 
the following information:
    (1) The name or other identification of the proceeding;
    (2) The identity of the court or governmental authority;
    (3) The date that jurisdiction was assumed; and
    (4) The identity of the receiver, fiscal agent or similar officer 
and the date of his or her appointment.
    (b) If an order confirming a plan of reorganization, arrangement or 
liquidation has been entered by a court or governmental authority 
having supervision or jurisdiction over substantially all of the assets 
or business of the registrant or its parent, disclose the following;
    (1) The identity of the court or governmental authority;
    (2) The date that the order confirming the plan was entered by the 
court or governmental authority;
    (3) A summary of the material features of the plan and, pursuant to 
Item 9.01 (Financial Statements and Exhibits), a copy of the plan as 
confirmed;
    (4) The number of shares or other units of the registrant or its 
parent issued and outstanding, the number reserved for future issuance 
in respect of claims and interests filed and allowed under the plan, 
and the aggregate total of such numbers; and
    (5) Information as to the assets and liabilities of the registrant 
or its parent as of the date that the order confirming the plan was 
entered, or a date as close thereto as practicable.
    Instruction.
    The information called for in paragraph (b)(5) of this Item 1.03 
may be presented in the form in which it was furnished to the court or 
governmental authority.

Section 2--Financial Information

Item 2.01 Completion of Acquisition or Disposition of Assets
    If the registrant or any of its majority-owned subsidiaries has 
completed the acquisition or disposition of a significant amount of 
assets, otherwise than in the ordinary course of business, disclose the 
following information:
    (a) The date of completion of the transaction;
    (b) a brief description of the assets involved;
    (c) the identity of the person(s) from whom the assets were 
acquired or to whom they were sold and the nature of any material 
relationship, other than in respect of the transaction, between such 
person(s) and the registrant or any of its affiliates, or any director 
or officer of the registrant, or any associate of any such director or 
officer;
    (d) the nature and amount of consideration given or received for 
the assets and, if any material relationship is disclosed pursuant to 
paragraph (c) of this Item 2.01, the formula or principle followed in 
determining the amount of such consideration; and
    (e) if the transaction being reported is an acquisition and if any 
material relationship is disclosed pursuant to paragraph (c) of this 
Item 2.01, the source(s) of the funds used unless all or any part of 
the consideration used is a loan made in the ordinary course of 
business by a bank as defined by Section 3(a)(6) of the Act, in which 
case the identity of such bank may be omitted provided the registrant:
    (1) Has made a request for confidentiality pursuant to Section 
13(d)(1)(B) of the Act; and
    (2) states in the report that the identity of the bank has been so 
omitted and filed separately with the Commission.

[[Page 15621]]

    Instructions.
    1. No information need be given as to:
    (i) Any transaction between any person and any wholly-owned 
subsidiary of such person;
    (ii) any transaction between two or more wholly-owned subsidiaries 
of any person; or
    (iii) the redemption or other acquisition of securities from the 
public, or the sale or other disposition of securities to the public, 
by the issuer of such securities or by a wholly-owned subsidiary of 
that issuer.
    2. The term acquisition includes every purchase, acquisition by 
lease, exchange, merger, consolidation, succession or other 
acquisition, except that the term does not include the construction or 
development of property by or for the registrant or its subsidiaries or 
the acquisition of materials for such purpose. The term disposition 
includes every sale, disposition by lease, exchange, merger, 
consolidation, mortgage, assignment or hypothecation of assets, whether 
for the benefit of creditors or otherwise, abandonment, destruction, or 
other disposition.
    3. The information called for by this Item 2.01 is to be given as 
to each transaction or series of related transactions of the size 
indicated. The acquisition or disposition of securities is deemed the 
indirect acquisition or disposition of the assets represented by such 
securities if it results in the acquisition or disposition of control 
of such assets.
    4. An acquisition or disposition shall be deemed to involve a 
significant amount of assets:
    (i) if the registrant's and its other subsidiaries' equity in the 
net book value of such assets or the amount paid or received for the 
assets upon such acquisition or disposition exceeded 10% of the total 
assets of the registrant and its consolidated subsidiaries; or
    (ii) if it involved a business (see 17 CFR 210.11-01(d)) that is 
significant (see 17 CFR 210.11-01(b)).
    Acquisitions of individually insignificant businesses are not 
required to be reported pursuant to this Item 2.01 unless they are 
related businesses (see 17 CFR 210.3-05(a)(3)) and are significant in 
the aggregate.
    5. Attention is directed to the requirements in Item 9.01 
(Financial Statements and Exhibits) with respect to the filing of:
    (i) financial statements of businesses acquired;
    (ii) pro forma financial information; and
    (iii) copies of the plans of acquisition or disposition as exhibits 
to the report.

Item 2.02 Results of Operations and Financial Condition.

    (a) If a registrant, or any person acting on its behalf, makes any 
public announcement or release (including any update of an earlier 
announcement or release) disclosing material non-public information 
regarding the registrant's results of operations or financial condition 
for a completed quarterly or annual fiscal period, the registrant shall 
disclose the date of the announcement or release, briefly identify the 
announcement or release and include the text of that announcement or 
release as an exhibit.
    (b) A Form 8-K is not required to be furnished to the Commission 
under this Item 2.02 in the case of disclosure of material non-public 
information that is disclosed orally, telephonically, by webcast, by 
broadcast, or by similar means if:
    (1) The information is provided as part of a presentation that is 
complementary to, and initially occurs within 48 hours after, a 
related, written announcement or release that has been furnished on 
Form 8-K pursuant to this Item 2.02 prior to the presentation;
    (2) the presentation is broadly accessible to the public by dial-in 
conference call, by webcast, by broadcast or by similar means;
    (3) the financial and other statistical information contained in 
the presentation is provided on the registrant's website, together with 
any information that would be required under 17 CFR 244.100; and
    (4) The presentation was announced by a widely disseminated press 
release, that included instructions as to when and how to access the 
presentation and the location on the registrant's Web site where the 
information would be available.
    Instructions.
    1. The requirements of this Item 2.02 are triggered by the 
disclosure of material non-public information regarding a completed 
fiscal year or quarter. Release of additional or updated material non-
public information regarding a completed fiscal year or quarter would 
trigger an additional Item 2.02 requirement.
    2. The requirements of paragraph (e)(1)(i) of Item 10 of Regulation 
S-K (17 CFR 229.10(e)(1)(i)) (or paragraph (h)(1)(i) of Item 10 of 
Regulation S-B (17 CFR 228.10(h)(1)(i)) in the case of a small business 
issuer) shall apply to disclosures under this Item 2.02.
    3. Issuers that make earnings announcements or other disclosures of 
material non-public information regarding a completed fiscal year or 
quarter in an interim or annual report to shareholders are permitted to 
specify which portion of the report contains the information required 
to be furnished under this Item 2.02.
    4. This Item 2.02 does not apply in the case of a disclosure that 
is made in a quarterly report filed with the Commission on Form 10-Q 
(17 CFR 249.308a) (or Form 10-QSB (17 CFR 249.308b)) or an annual 
report filed with the Commission on Form 10-K (17 CFR 249.310) (or Form 
10-KSB (17 CFR 249.310b)).
Item 2.03 Creation of a Direct Financial Obligation or an Obligation 
Under an Off-Balance Sheet Arrangement of a Registrant
    (a) If the registrant becomes obligated on a direct financial 
obligation that is material to the registrant, disclose the following 
information:
    (1) The date on which the registrant becomes obligated on the 
direct financial obligation and a brief description of the transaction 
or agreement creating the obligation;
    (2) The amount of the obligation, including the terms of its 
payment and, if applicable, a brief description of the material terms 
under which it may be accelerated or increased and the nature of any 
recourse provisions that would enable the registrant to recover from 
third parties; and
    (3) A brief description of the other terms and conditions of the 
transaction or agreement that are material to the registrant.
    (b) If the registrant becomes directly or contingently liable for 
an obligation that is material to the registrant arising out of an off-
balance sheet arrangement, disclose the following information:
    (1) The date on which the registrant becomes directly or 
contingently liable on the obligation and a brief description of the 
transaction or agreement creating the arrangement and obligation;
    (2) A brief description of the nature and amount of the obligation 
of the registrant under the arrangement, including the material terms 
whereby it may become a direct obligation, if applicable, or may be 
accelerated or increased and the nature of any recourse provisions that 
would enable the registrant to recover from third parties;
    (3) The maximum potential amount of future payments (undiscounted) 
that the registrant may be required to make, if different; and
    (4) A brief description of the other terms and conditions of the 
obligation or arrangement that are material to the registrant.

[[Page 15622]]

    (c) For purposes of this Item 2.03, direct financial obligation 
means any of the following:
    (1) A long-term debt obligation, as defined in Item 
303(a)(5)(ii)(A) of Regulation S-K (17 CFR 229.303(a)(5)(ii)(A));
    (2) A capital lease obligation, as defined in Item 303(a)(5)(ii)(B) 
of Regulation S-K (17 CFR 229.303(a)(5)(ii)(B));
    (3) An operating lease obligation, as defined in Item 
303(a)(5)(ii)(C) of Regulation S-K (17 CFR 229.303(a)(5)(ii)(C)); or
    (4) A short-term debt obligation that arises other than in the 
ordinary course of business.
    (d) For purposes of this Item 2.03, off-balance sheet arrangement 
has the meaning set forth in Item 303(a)(4)(ii) of Regulation S-K (17 
CFR 229.303(a)(4)(ii)) or Item 303(c)(2) of Regulation S-B (17 CFR 
228.303(c)(2)), as applicable.
    (e) For purposes of this Item 2.03, short-term debt obligation 
means a payment obligation under a borrowing arrangement that is 
scheduled to mature within one year, or, for those registrants that use 
the operating cycle concept of working capital, within a registrant's 
operating cycle that is longer than one year, as discussed in 
Accounting Research Bulletin No. 43, Chapter 3A, Working Capital.
    Instructions.
    1. A registrant has no obligation to disclose information under 
this Item 2.03 until the registrant enters into an agreement 
enforceable against the registrant, whether or not subject to 
conditions, under which the direct financial obligation will arise or 
be created or issued. If there is no such agreement, the registrant 
must provide the disclosure within four business days after the 
occurrence of the closing or settlement of the transaction or 
arrangement under which the direct financial obligation arises or is 
created.
    2. A registrant must provide the disclosure required by paragraph 
(b) of this Item 2.03 whether or not the registrant is also a party to 
the transaction or agreement creating the contingent obligation arising 
under the off-balance sheet arrangement. In the event that neither the 
registrant nor any affiliate of the registrant is also a party to the 
transaction or agreement creating the contingent obligation arising 
under the off-balance sheet arrangement in question, the four business 
day period for reporting the event under this Item 2.03 shall begin on 
the earlier of (i) the fourth business day after the contingent 
obligation is created or arises, and (ii) the day on which an executive 
officer, as defined in 17 CFR 240.3b-7, of the registrant becomes aware 
of the contingent obligation.
    3. In the event that an agreement, transaction or arrangement 
requiring disclosure under this Item 2.03 comprises a facility, program 
or similar arrangement that creates or may give rise to direct 
financial obligations of the registrant in connection with multiple 
transactions, the registrant shall:
    (i) Disclose the entering into of the facility, program or similar 
arrangement if the entering into of the facility is material to the 
registrant; and
    (ii) As direct financial obligations arise or are created under the 
facility or program, disclose the required information under this Item 
2.03 to the extent that the obligations are material to the registrant 
(including when a series of previously undisclosed individually 
immaterial obligations become material in the aggregate).
    4. For purposes of Item 2.03(b)(3), the maximum amount of future 
payments shall not be reduced by the effect of any amounts that may 
possibly be recovered by the registrant under recourse or 
collateralization provisions in any guarantee agreement, transaction or 
arrangement.
    5. If the obligation required to be disclosed under this Item 2.03 
is a security, or a term of a security, that has been or will be sold 
pursuant to an effective registration statement of the registrant, the 
registrant is not required to file a Form 8-K pursuant to this Item 
2.03, provided that the prospectus relating to that sale contains the 
information required by this Item 2.03 and is filed within the required 
time period under Securities Act Rule 424 (Sec.  230.424 of this 
chapter).
Item 2.04 Triggering Events That Accelerate or Increase a Direct 
Financial Obligation or an Obligation Under an Off-Balance Sheet 
Arrangement
    (a) If a triggering event causing the increase or acceleration of a 
direct financial obligation of the registrant occurs and the 
consequences of the event, taking into account those described in 
paragraph (a)(4) of this Item 2.04, are material to the registrant, 
disclose the following information:
    (1) The date of the triggering event and a brief description of the 
agreement or transaction under which the direct financial obligation 
was created and is increased or accelerated;
    (2) A brief description of the triggering event;
    (3) The amount of the direct financial obligation, as increased if 
applicable, and the terms of payment or acceleration that apply; and
    (4) Any other material obligations of the registrant 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.
    (b) If a triggering event occurs causing an obligation of the 
registrant under an off-balance sheet arrangement to increase or be 
accelerated, or causing a contingent obligation of the registrant under 
an off-balance sheet arrangement to become a direct financial 
obligation of the registrant, and the consequences of the event, taking 
into account those described in paragraph (b)(4) of this Item 2.04, are 
material to the registrant, disclose the following information:
    (1) The date of the triggering event and a brief description of the 
off-balance sheet arrangement;
    (2) As brief description of the triggering event;
    (3) The nature and amount of the obligation, as increased if 
applicable, and the terms of payment or acceleration that apply; and
    (4) Any other material obligations of the registrant 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 registrant.
    (c) For purposes of this Item 2.04, the term direct financial 
obligation has the meaning provided in Item 2.03 of this form, but 
shall also include an obligation arising out of an off-balance sheet 
arrangement that is accrued under FASB Statement of Financial 
Accounting Standards No. 5 Accounting for Contingencies (SFAS No. 5) as 
a probable loss contingency.
    (d) For purposes of this Item 2.04, the term off-balance sheet 
arrangement has the meaning provided in Item 2.03 of this form.
    (e) For purposes of this Item 2.04, a triggering event is an event, 
including an event of default, event of acceleration or similar event, 
as a result of which a direct financial obligation of the registrant or 
an obligation of the registrant arising under an off-balance sheet 
arrangement is increased or becomes accelerated or as a result of which 
a contingent obligation of the registrant arising out of an off-balance 
sheet arrangement becomes a direct financial obligation of the 
registrant.
    Instructions.
    1. Disclosure is required if a triggering event occurs in respect 
of an obligation of the registrant under an off-balance sheet 
arrangement and the

[[Page 15623]]

consequences are material to the registrant, whether or not the 
registrant is also a party to the transaction or agreement under which 
the triggering event occurs.
    2. No disclosure is required under this Item 2.04 unless and until 
a triggering event has occurred in accordance with the terms of the 
relevant agreement, transaction or arrangement, including, if required, 
the sending to the registrant of notice of the occurrence of a 
triggering event pursuant to the terms of the agreement, transaction or 
arrangement and the satisfaction of all conditions to such occurrence, 
except the passage of time.
    3. No disclosure is required solely by reason of this Item 2.04 if 
the registrant believes in good faith that no triggering event has 
occurred, unless the registrant has received a notice described in 
Instruction 2 to this Item 2.04.
    4. Where a registrant is subject to an obligation arising out of an 
off-balance sheet arrangement, whether or not disclosed pursuant to 
Item 2.03 of this form, if a triggering event occurs as a result of 
which under that obligation an accrual for a probable loss is required 
under SFAS No. 5, the obligation arising out of the off-balance sheet 
arrangement becomes a direct financial obligation as defined in this 
Item 2.04. In that situation, if the consequences as determined under 
Item 2.04(b) are material to the registrant, disclosure is required 
under this Item 2.04.
Item 2.05 Costs Associated With Exit or Disposal Activities
    If the registrant's board of directors, a committee of the board of 
directors or the officer or officers of the registrant authorized to 
take such action if board action is not required, commits the 
registrant to an exit or disposal plan, or otherwise disposes of a 
long-lived asset or terminates employees under a plan of termination 
described in paragraph 8 of FASB Statement of Financial Accounting 
Standards No. 146 Accounting for Costs Associated with Exit or Disposal 
Activities (SFAS No. 146), under which material charges will be 
incurred under generally accepted accounting principles applicable to 
the registrant, disclose the following information:
    (a) The date of the commitment to the course of action and a 
description of the course of action, including the facts and 
circumstances leading to the expected action and the expected 
completion date;
    (b) For each major type of cost associated with the course of 
action (for example, one-time termination benefits, contract 
termination costs and other associated costs), an estimate of the total 
amount or range of amounts expected to be incurred in connection with 
the action;
    (c) An estimate of the total amount or range of amounts expected to 
be incurred in connection with the action; and
    (d) The registrant's estimate of the amount or range of amounts of 
the charge that will result in future cash expenditures, provided, 
however, that if the registrant determines that at the time of filing 
it is unable in good faith to make a determination of an estimate 
required by paragraphs (b), (c) or (d) of this Item 2.05, no disclosure 
of such estimate shall be required; provided further, however, that in 
any such event, the registrant shall file an amended report on Form 8-K 
under this Item 2.05 within four business days after it makes a 
determination of such an estimate or range of estimates.
Item 2.06 Material Impairments
    If the registrant's board of directors, a committee of the board of 
directors or the officer or officers of the registrant authorized to 
take such action if board action is not required, concludes that a 
material charge for impairment to one or more of its assets, including, 
without limitation, impairments of securities or goodwill, is required 
under generally accepted accounting principles applicable to the 
registrant, disclose the following information:
    (a) The date of the conclusion that a material charge is required 
and a description of the impaired asset or assets and the facts and 
circumstances leading to the conclusion that the charge for impairment 
is required;
    (b) The registrant's estimate of the amount or range of amounts of 
the impairment charge; and
    (c) The registrant's estimate of the amount or range of amounts of 
the impairment charge that will result in future cash expenditures, 
provided, however, that if the registrant determines that at the time 
of filing it is unable in good faith to make a determination of an 
estimate required by paragraphs (b) or (c) of this Item 2.06, no 
disclosure of such estimate shall be required; provided further, 
however, that in any such event, the registrant shall file an amended 
report on Form 8-K under this Item 2.06 within four business days after 
it makes a determination of such an estimate or range of estimates.
    Instruction.
    No filing is required under this Item 2.06 if the conclusion is 
made in connection with the preparation, review or audit of financial 
statements required to be included in the next periodic report due to 
be filed under the Exchange Act, the periodic report is filed on a 
timely basis and such conclusion is disclosed in the report.

Section 3--Securities and Trading Markets

Item 3.01 Notice of Delisting or Failure To Satisfy a Continued Listing 
Rule or Standard; Transfer of Listing
    (a) If the registrant has received notice from the national 
securities exchange or national securities association (or a facility 
thereof) that maintains the principal listing for any class of the 
registrant's common equity (as defined in Exchange Act Rule 12b-2 (17 
CFR 240.12b-2)) that:
     The registrant or such class of the registrant's 
securities does not satisfy a rule or standard for continued listing on 
the exchange or association;
     The exchange has submitted an application under 
Exchange Act Rule 12d2-2 (17 CFR 240.12d2-2) to the Commission to 
delist such class of the registrant's securities; or
     The association has taken all necessary steps 
under its rules to delist the security from its automated inter-dealer 
quotation system, the registrant must disclose:
    (i) The date that the registrant received the notice;
    (ii) The rule or standard for continued listing on the national 
securities exchange or national securities association that the 
registrant fails, or has failed to, satisfy; and
    (iii) Any action or response that, at the time of filing, the 
registrant has determined to take in response to the notice.
    (b) If the registrant has notified the national securities exchange 
or national securities association (or a facility thereof) that 
maintains the principal listing for any class of the registrant's 
common equity (as defined in Exchange Act Rule 12b-2 (17 CFR 240.12b-2) 
that the registrant is aware of any material noncompliance with a rule 
or standard for continued listing on the exchange or association, the 
registrant must disclose:
    (i) The date that the registrant provided such notice to the 
exchange or association;
    (ii) The rule or standard for continued listing on the exchange or 
association that the registrant fails, or has failed, to satisfy; and
    (iii) any action or response that, at the time of filing, the 
registrant has determined to take regarding its noncompliance.
    (c) If the national securities exchange or national securities 
association (or a

[[Page 15624]]

facility thereof) that maintains the principal listing for any class of 
the registrant's common equity (as defined in Exchange Act Rule 12b-2 
(17 CFR 240.12b-2)), in lieu of suspending trading in or delisting such 
class of the registrant's securities, issues a public reprimand letter 
or similar communication indicating that the registrant has violated a 
rule or standard for continued listing on the exchange or association, 
the registrant must state the date, and summarize the contents of the 
letter or communication.
    (d) If the registrant's board of directors, a committee of the 
board of directors or the officer or officers of the registrant 
authorized to take such action if board action is not required, has 
taken definitive action to cause the listing of a class of its common 
equity to be withdrawn from the national securities exchange, or 
terminated from the automated inter-dealer quotation system of a 
registered national securities association, where such exchange or 
association maintains the principal listing for such class of 
securities, including by reason of a transfer of the listing or 
quotation to another securities exchange or quotation system, describe 
the action taken and state the date of the action.
    Instructions.
    1. The registrant is not required to disclose any information 
required by paragraph (a) of this Item 3.01 where the delisting is a 
result of one of the following:
     The entire class of the security has been called 
for redemption, maturity or retirement; appropriate notice thereof has 
been given; if required by the terms of the securities, funds 
sufficient for the payment of all such securities have been deposited 
with an agency authorized to make such payments; and such funds have 
been made available to security holders;
     The entire class of the security has been 
redeemed or paid at maturity or retirement;
     The instruments representing the entire class of 
securities have come to evidence, by operation of law or otherwise, 
other securities in substitution therefor and represent no other right, 
except, if true, the right to receive an immediate cash payment (the 
right of dissenters to receive the appraised or fair value of their 
holdings shall not prevent the application of this provision); or
     All rights pertaining to the entire class of the 
security have been extinguished; provided, however, that where such an 
event occurs as the result of an order of a court or other governmental 
authority, the order shall be final, all applicable appeal periods 
shall have expired and no appeals shall be pending.
    2. A registrant must provide the disclosure required by paragraph 
(a) or (b) of this Item 3.01, as applicable, regarding any failure to 
satisfy a rule or standard for continued listing on the national 
securities exchange or national securities association (or a facility 
thereof) that maintains the principal listing for any class of the 
registrant's common equity (as defined in Exchange Act Rule 12b-2 (17 
CFR 240.12b-2)) even if the registrant has the benefit of a grace 
period or similar extension period during which it may cure the 
deficiency that triggers the disclosure requirement.
    3. Notices or other communications subsequent to an initial notice 
sent to, or by, a registrant under Item 3.01(a), (b) or (c) that 
continue to indicate that the registrant does not comply with the same 
rule or standard for continued listing that was the subject of the 
initial notice are not required to be filed, but may be filed 
voluntarily.
    4. Registrants whose securities are quoted exclusively (i.e., the 
securities are not otherwise listed on an exchange or association) on 
automated inter-dealer quotation systems are not subject to this Item 
3.01 and such registrants are thus not required to file a Form 8-K 
pursuant to this Item 3.01 if the securities are no longer quoted on 
such quotation system. If a security is listed on an exchange or 
association and is also quoted on an automated inter-dealer quotation 
system, the registrant is subject to the disclosure obligations of Item 
3.01 if any of the events specified in Item 3.01 occur.
Item 3.02 Unregistered Sales of Equity Securities
    (a) If the registrant sells equity securities in a transaction that 
is not registered under the Securities Act, furnish the information set 
forth in paragraphs (a) and (c) through (e) of Item 701 of Regulation 
S-K or Regulation S-B, as applicable (17 CFR 229.701(a) and (c) through 
(e) and 228.701(a) and (c) through (e), respectively). For purposes of 
determining the required filing date for the Form 8-K under this Item 
3.02(a), the registrant has no obligation to disclose information under 
this Item 3.02 until the registrant enters into an agreement 
enforceable against the registrant, whether or not subject to 
conditions, under which the equity securities are to be sold. If there 
is no such agreement, the registrant must provide the disclosure within 
four business days after the occurrence of the closing or settlement of 
the transaction or arrangement under which the equity securities are to 
be sold.
    (b) No report need be filed under this Item 3.02 if the equity 
securities sold, in the aggregate since its last report filed under 
this Item 3.02 or its last periodic report, whichever is more recent, 
constitute less than 1% of the number of shares outstanding of the 
class of equity securities sold. In the case of a small business 
issuer, no report need be filed if the equity securities sold, in the 
aggregate since its last report filed under this Item 3.02 or its last 
periodic report, whichever is more recent, constitute less than 5% of 
the number of shares outstanding of the class of equity securities 
sold.
    Instructions.
    1. For purposes of this Item 3.02, ``the number of shares 
outstanding'' refers to the actual number of shares of equity 
securities of the class outstanding and does not include outstanding 
securities convertible into or exchangeable for such equity securities.
    2. Small business issuer is defined under Item 10(a)(1) of 
Regulation S-B (17 CFR 228.10(a)(1)).
Item 3.03 Material Modification to Rights of Security Holders
    (a) If the constituent instruments defining the rights of the 
holders of any class of registered securities of the registrant have 
been materially modified, disclose the date of the modification, the 
title of the class of securities involved and briefly describe the 
general effect of such modification upon the rights of holders of such 
securities.
    (b) If the rights evidenced by any class of registered securities 
have been materially limited or qualified by the issuance or 
modification of any other class of securities by the registrant, 
briefly disclose the date of the issuance or modification, the general 
effect of the issuance or modification of such other class of 
securities upon the rights of the holders of the registered securities.
    Instruction.
    Working capital restrictions and other limitations upon the payment 
of dividends must be reported pursuant to this Item 3.03.

Section 4--Matters Related to Accountants and Financial Statements

Item 4.01 Changes in Registrant's Certifying Accountant
    (a) If an independent accountant who was previously engaged as the 
principal accountant to audit the registrant's financial statements, or 
an independent accountant upon whom the principal

[[Page 15625]]

accountant expressed reliance in its report regarding a significant 
subsidiary, resigns (or indicates that it declines to stand for re-
appointment after completion of the current audit) or is dismissed, 
disclose the information required by Item 304(a)(1) of Regulation S-K 
or Item 304(a)(1) of Regulation S-B, as applicable, including 
compliance with Item 304(a)(3) of Regulation S-K or Item 304(a)(3) of 
Regulation S-B (17 CFR 229.304(a)(1) and (a)(3) or 228.304(a)(1) and 
(a)(3), respectively).
    (b) If a new independent accountant has been engaged as either the 
principal accountant to audit the registrant's financial statements or 
as an independent accountant on whom the principal accountant is 
expected to express reliance in its report regarding a significant 
subsidiary, the registrant must disclose the information required by 
Item 304(a)(2) of Regulation S-K or Item 304(a)(2) of Regulation S-B, 
as applicable (17 CFR 229.304(a)(2) or 228.304(a)(2), respectively).
    Instruction.
    The resignation or dismissal of an independent accountant, or its 
refusal to stand for re-appointment, is a reportable event separate 
from the engagement of a new independent accountant. On some occasions, 
two reports on Form 8-K are required for a single change in 
accountants, the first on the resignation (or refusal to stand for re-
appointment ) or dismissal of the former accountant and the second when 
the new accountant is engaged. Information required in the second Form 
8-K in such situations need not be provided to the extent that it has 
been reported previously in the first Form 8-K.
Item 4.02 Non-Reliance on Previously Issued Financial Statements or a 
Related Audit Report or Completed Interim Review
    (a) If the registrant's board of directors, a committee of the 
board of directors or the officer or officers of the registrant 
authorized to take such action if board action is not required, 
concludes that any previously issued financial statements, covering one 
or more years or interim periods for which the registrant is required 
to provide financial statements under Regulation S-X (17 CFR part 210) 
or Regulation S-B (17 CFR part 228), should no longer be relied upon 
because of an error in such financial statements as addressed in 
Accounting Principles Board Opinion No. 20, as may be modified, 
supplemented or succeeded, disclose the following information:
    (1) The date of the conclusion regarding the non-reliance and an 
identification of the financial statements and years or periods covered 
that should no longer be relied upon;
    (2) a brief description of the facts underlying the conclusion to 
the extent known to the registrant at the time of filing; and
    (3) a statement of whether the audit committee, or the board of 
directors in the absence of an audit committee, or authorized officer 
or officers, discussed with the registrant's independent accountant the 
matters disclosed in the filing pursuant to this Item 4.02(a).
    (b) If the registrant 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, disclose the following information:
    (1) The date on which the registrant was so advised or notified;
    (2) Identification of the financial statements that should no 
longer be relied upon;
    (3) A brief description of the information provided by the 
accountant; and
    (4) A statement of whether the audit committee, or the board of 
directors in the absence of an audit committee, or authorized officer 
or officers, discussed with the independent accountant the matters 
disclosed in the filing pursuant to this Item 4.02(b).
    (c) If the registrant receives advisement or notice from its 
independent accountant requiring disclosure under paragraph (b) of this 
Item 4.02, the registrant must:
    (1) Provide the independent accountant with a copy of the 
disclosures it is making in response to this Item 4.02 that the 
independent accountant shall receive no later than the day that the 
disclosures are filed with the Commission;
    (2) Request the independent accountant to furnish to the registrant 
as promptly as possible a letter addressed to the Commission stating 
whether the independent accountant agrees with the statements made by 
the registrant in response to this Item 4.02 and, if not, stating the 
respects in which it does not agree; and
    (3) Amend the registrant's previously filed Form 8-K by filing the 
independent accountant's letter as an exhibit to the filed Form 8-K no 
later than two business days after the registrant's receipt of the 
letter.

Section 5--Corporate Governance and Management

Item 5.01 Changes in Control of Registrant
    (a) If, to the knowledge of the registrant's board of directors, a 
committee of the board of directors or authorized officer or officers 
of the registrant, a change in control of the registrant has occurred, 
furnish the following information:
    (1) The identity of the person(s) who acquired such control;
    (2) the date and a description of the transaction(s) which resulted 
in the change in control;
    (3) The basis of the control, including the percentage of voting 
securities of the registrant now beneficially owned directly or 
indirectly by the person(s) who acquired control;
    (4) The amount of the consideration used by such person(s);
    (5) The source(s) of funds used by the person(s), unless all or any 
part of the consideration used is a loan made in the ordinary course of 
business by a bank as defined by Section 3(a)(6) of the Act, in which 
case the identity of such bank may be omitted provided the person who 
acquired control:
    (1) Has made a request for confidentiality pursuant to Section 
13(d)(1)(B) of the Act; and
    (2) States in the report that the identity of the bank has been so 
omitted and filed separately with the Commission.
    (6) The identity of the person(s) from whom control was assumed; 
and
    (7) Any arrangements or understandings among members of both the 
former and new control groups and their associates with respect to 
election of directors or other matters.
    (b) Furnish the information required by Item 403(c) of Regulation 
S-K (17 CFR 229.403(c)) or Item 403(c) of Regulation S-B (17 CFR 
228.403(c)), as applicable.
Item 5.02 Departure of Directors or Principal Officers; Election of 
Directors; Appointment of Principal Officers
    (a)(1) If a director has resigned or refuses to stand for re-
election to the board of directors since the date of the last annual 
meeting of shareholders because of a disagreement with the registrant, 
known to an executive officer of the registrant, as defined in 17 CFR 
240.3b-7, on any matter relating to the registrant's operations, 
policies or practices, or if a director has been removed for cause from 
the board of directors, disclose the following information:

[[Page 15626]]

    (i) The date of such resignation, refusal to stand for re-election 
or removal;
    (ii) Any positions held by the director on any committee of the 
board of directors at the time of the director's resignation, refusal 
to stand for re-election or removal; and
    (iii) A brief description of the circumstances representing the 
disagreement that the registrant believes caused, in whole or in part, 
the director's resignation, refusal to stand for re-election or 
removal.
    (2) If the director has furnished the registrant with any written 
correspondence concerning the circumstances surrounding his or her 
resignation, refusal or removal, the registrant shall file a copy of 
the document as an exhibit to the report on Form 8-K.
    (3) The registrant also must:
    (i) Provide the director with a copy of the disclosures it is 
making in response to this Item 5.02 no later than the day the 
registrant file the disclosures with the Commission;
    (ii) Provide the director with the opportunity to furnish the 
registrant as promptly as possible with a letter addressed to the 
registrant stating whether he or she agrees with the statements made by 
the registrant in response to this Item 5.02 and, if not, stating the 
respects in which he or she does not agree; and
    (iii) File any letter received by the registrant from the director 
with the Commission as an exhibit by an amendment to the previously 
filed Form 8-K within two business days after receipt by the 
registrant.
    (b) If the registrant's principal executive officer, president, 
principal financial officer, principal accounting officer, principal 
operating officer or any person performing similar functions retires, 
resigns or is terminated from that position, or if a director retires, 
resigns, is removed, or refuses to stand for re-election (except in 
circumstances described in paragraph (a) of this Item 5.02), disclose 
the fact that the event has occurred and the date of the event.
    (c) If the registrant appoints a new principal executive officer, 
president, principal financial officer, principal accounting officer, 
principal operating officer or person performing similar functions, 
disclose the following information with respect to the newly appointed 
officer:
    (1) The name and position of the newly appointed officer and the 
date of the appointment;
    (2) The information required by Items 401(b), (d), (e) and Item 
404(a) of Regulation S-K (17 CFR 229.401(b), (d), (e) and 229.404(a)), 
or, in the case of a small business issuer, Items 401(a)(4), (a)(5), 
(c), and Items 404(a) and (b) of Regulation S-B (17 CFR 228.401(a)(4), 
(a)(5), (c), and 228.404(a) and (b), respectively); and
    (3) A brief description of the material terms of any employment 
agreement between the registrant and that officer.
    Instruction to paragraph (c).
    If the registrant intends to make a public announcement of the 
appointment other than by means of a report on Form 8-K, the registrant 
may delay filing the Form 8-K containing the disclosures required by 
this Item 5.02(c) until the day on which the registrant otherwise makes 
public announcement of the appointment of such officer.
    (d) If the registrant elects a new director, except by a vote of 
security holders at an annual meeting or special meeting convened for 
such purpose, disclose the following information:
    (1) The name of the newly elected director and the date of 
election;
    (2) A brief description of any arrangement or understanding between 
the new director and any other persons, naming such persons, pursuant 
to which such director was selected as a director;
    (3) The committees of the board of directors to which the new 
director has been, or at the time of this disclosure is expected to be, 
named; and
    (4) The information required by Item 404(a) of Regulation S-K or 
Item 404(a) of Regulation S-B, as applicable (17 CFR 229.404(a) or 
228.404(a), respectively).
    Instructions to Item 5.02.
    1. The disclosure requirements of this Item 5.02 do not apply to a 
registrant that is a wholly-owned subsidiary of an issuer with a class 
of securities registered under Section 12 of the Exchange Act (15 
U.S.C. 78l), or that is required to file reports under Section 15(d) of 
the Exchange Act (15 U.S.C. 78o(d)).
    2. To the extent that any information called for in Item 5.02(c)(3) 
or Item 5.02(d)(3) or Item 5.02(d)(4) is not determined or is 
unavailable at the time of the required filing, the registrant shall 
include a statement to this effect in the filing and then must file an 
amendment to its Form 8-K filing under this Item 5.02 containing such 
information within four business days after the information is 
determined or becomes available.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in 
Fiscal Year
    (a) If a registrant with a class of equity securities registered 
under Section 12 of the Exchange Act (15 U.S.C. 78l) amends its 
articles of incorporation or bylaws and a proposal for the amendment 
was not disclosed in a proxy statement or information statement filed 
by the registrant, disclose the following information:
    (1) The effective date of the amendment; and
    (2) A description of the provision adopted or changed by amendment 
and, if applicable, the previous provision.
    (b) If the registrant determines to change the fiscal year from 
that used in its most recent filing with the Commission other than by 
means of:
    (1) A submission to a vote of security holders through the 
solicitation of proxies or otherwise; or
    (2) An amendment to its articles of incorporation or bylaws, 
disclose the date of such determination, the date of the new fiscal 
year end and the form (for example, Form 10-K, Form 10-KSB, Form 10-Q 
or Form 10-QSB) on which the report covering the transition period will 
be filed.
    Instruction to Item 5.03.
    Refer to Item 601(b)(3) of Regulation S-K or Regulation S-B (17 CFR 
229.601(b)(3) and 228.601(b)(3)), as applicable, regarding the filing 
of exhibits to this Item 5.03.
Item 5.04 Temporary Suspension of Trading Under Registrant's Employee 
Benefit Plans
    (a) No later than the fourth business day after which the 
registrant receives the notice required by section 101(i)(2)(E) of the 
Employment Retirement Income Security Act of 1974 (29 U.S.C. 
1021(i)(2)(E)), or, if such notice is not received by the registrant, 
on the same date by which the registrant transmits a timely notice to 
an affected officer or director within the time period prescribed by 
Rule 104(b)(2)(i)(B) or 104(b)(2)(ii) of Regulation BTR (17 CFR 
245.104(b)(2)(i)(B) or 17 CFR 245.104(b)(2)(ii)), provide the 
information specified in Rule 104(b) (17 CFR 245.104(b)) and the date 
the registrant received the notice required by section 101(i)(2)(E) of 
the Employment Retirement Income Security Act of 1974 (29 U.S.C. 
1021(i)(2)(E)), if applicable.
    (b) On the same date by which the registrant transmits a timely 
updated notice to an affected officer or director, as required by the 
time period under Rule 104(b)(2)(iii) of Regulation BTR (17 CFR 
245.104(b)(2)(iii)), provide the information specified in Rule 
104(b)(3)(iii) (17 CFR 245.104(b)(2)(iii)).

[[Page 15627]]

Item 5.05 Amendments to the Registrant's Code of Ethics, or Waiver of a 
Provision of the Code of Ethics.
    (a) Briefly describe the date and nature of any amendment to a 
provision of the registrant's code of ethics that applies to the 
registrant's principal executive officer, principal financial officer, 
principal accounting officer or controller or persons performing 
similar functions and that relates to any element of the code of ethics 
definition enumerated in Item 406(b) of Regulations S-K and S-B (17 CFR 
229.406(b) and 228.406(b), respectively).
    (b) If the registrant has granted a waiver, including an implicit 
waiver, from a provision of the code of ethics to an officer or person 
described in paragraph (a) of this Item 5.05, and the waiver relates to 
one or more of the elements of the code of ethics definition referred 
to in paragraph (a) of this Item 5.05, briefly describe the nature of 
the waiver, the name of the person to whom the waiver was granted, and 
the date of the waiver.
    (c) The registrant does not need to provide any information 
pursuant to this Item 5.05 if it discloses the required information on 
its Internet website within five business days following the date of 
the amendment or waiver and the registrant has disclosed in its most 
recently filed annual report its Internet address and intention to 
provide disclosure in this manner. If the registrant elects to disclose 
the information required by this Item 5.05 through its website, such 
information must remain available on the website for at least a 12-
month period. Following the 12-month period, the registrant must retain 
the information for a period of not less than five years. Upon request, 
the registrant must furnish to the Commission or its staff a copy of 
any or all information retained pursuant to this requirement.
    Instructions.
    1. The registrant does not need to disclose technical, 
administrative or other non-substantive amendments to its code of 
ethics.
    2. For purposes of this Item 5.05:
    (i) The term waiver means the approval by the registrant of a 
material departure from a provision of the code of ethics; and
    (ii) The term implicit waiver means the registrant's failure to 
take action within a reasonable period of time regarding a material 
departure from a provision of the code of ethics that has been made 
known to an executive officer, as defined in Rule 3b-7 (17 CFR 240.3b-
7) of the registrant.

Section 6--[Reserved]

Section 7--Regulation FD

Item 7.01 Regulation FD Disclosure
    Unless filed under Item 8.01, disclose under this item only 
information that the registrant elects to disclose through Form 8-K 
pursuant to Regulation FD (17 CFR 243.100 through 243.103).

Section 8--Other Events

Item 8.01 Other Events
    The registrant may, at its option, disclose under this Item 8.01 
any events, with respect to which information is not otherwise called 
for by this form, that the registrant deems of importance to security 
holders. The registrant may, at its option, file a report under this 
Item 8.01 disclosing the nonpublic information required to be disclosed 
by Regulation FD (17 CFR 243.100 through 243.103).

Section 9--Financial Statements and Exhibits

Item 9.01 Financial Statements and Exhibits.
    List below the financial statements, pro forma financial 
information and exhibits, if any, filed as a part of this report.
    (a) Financial statements of businesses acquired.
    (1) For any business acquisition required to be described in answer 
to Item 2.01 of this form, financial statements of the business 
acquired shall be filed for the periods specified in Rule 3-05(b) of 
Regulation S-X (17 CFR 210.3-05(b)).
    (2) The financial statements shall be prepared pursuant to 
Regulation S-X except that supporting schedules need not be filed. A 
manually signed accountant's report should be provided pursuant to Rule 
2-02 of Regulation S-X (17 CFR 210.2-02).
    (3) With regard to the acquisition of one or more real estate 
properties, the financial statements and any additional information 
specified by Rule 3-14 of Regulation S-X (17 CFR 210.3-14) shall be 
filed.
    (4) Financial statements required by this item may be filed with 
the initial report, or by amendment not later than 71 calendar days 
after the date that the initial report on Form 8-K must be filed. If 
the financial statements are not included in the initial report, the 
registrant should so indicate in the Form 8-K report and state when the 
required financial statements will be filed. The registrant may, at its 
option, include unaudited financial statements in the initial report on 
Form 8-K.
    (b) Pro forma financial information.
    (1) For any transaction required to be described in answer to Item 
2.01 of this form, furnish any pro forma financial information that 
would be required pursuant to Article 11 of Regulation S-X (17 CFR 
210).
    (2) The provisions of paragraph (a)(4) of this Item 9.01 shall also 
apply to pro forma financial information relative to the acquired 
business.
    (c) Exhibits. The exhibits shall be deemed to be filed or 
furnished, depending on the relevant item requiring such exhibit, in 
accordance with the provisions of Item 601 of Regulation S-K (17 CFR 
229.601), or Item 601 of Regulation S-B (17 CFR 228.601) and 
Instruction B.2 to this form.
    Instruction.
    During the period after a registrant has reported a business 
combination pursuant to Item 2.01 of this form, until the date on which 
the financial statements specified by this Item 9.01 must be filed, the 
registrant will be deemed current for purposes of its reporting 
obligations under Section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 
78m or 78o(d)). With respect to filings under the Securities Act, 
however, registration statements will not be declared effective and 
post-effective amendments to registrations statements will not be 
declared effective unless financial statements meeting the requirements 
of Rule 3-05 of Regulation S-X (17 CFR 210.3-05) are provided. In 
addition, offerings should not be made pursuant to effective 
registration statements, or pursuant to Rules 505 and 506 of Regulation 
D (17 CFR 230.505 and 230.506) where any purchasers are not accredited 
investors under Rule 501(a) of that Regulation, until the audited 
financial statements required by Rule 3-05 of Regulation S-X (17 CFR 
210.3-05) are filed; provided, however, that the following offerings or 
sales of securities may proceed notwithstanding that financial 
statements of the acquired business have not been filed:
    (a) Offerings or sales of securities upon the conversion of 
outstanding convertible securities or upon the exercise of outstanding 
warrants or rights;
    (b) Dividend or interest reinvestment plans;
    (c) Employee benefit plans;
    (d) Transactions involving secondary offerings; or
    (e) Sales of securities pursuant to Rule 144 (17 CFR 230.144).
* * * * *

0
20. Amend Form 10-Q (referenced in Sec.  249.308a) by:

[[Page 15628]]

0
a. Revising the heading for Item 2 in Part II--Other Information;
0
b. Removing Items 2(a), 2(b) and 6(b);
0
c. Redesignating paragraphs (c), (d) and (e) in Item 2 as paragraphs 
(a), (b) and (c);
0
d. Revising newly redesignated paragraph (a) in Item 2;
0
e. Revising the Instructions to Item 3;
0
f. Revising Item 5;
0
g. Removing the words ``and Reports on Form 8-K (Sec.  249.308 of this 
chapter)'' from the heading of Item 6; and
0
h. Removing the paragraph (a) designation in Item 6.

    The revisions read as follows:


    Note The text of Form 10-Q does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-Q

* * * * *

Part II--Other Information

* * * * *
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
    (a) Furnish the information required by Item 701 of Regulation S-K 
(17 CFR 229.701) as to all equity securities of the registrant sold by 
the registrant during the period covered by the report that were not 
registered under the Securities Act. If the Item 701 information 
previously has been included in a Current Report on Form 8-K (17 CFR 
249.308), however, it need not be furnished.
* * * * *
Item 3. Defaults Upon Senior Securities
* * * * *
    Instructions to Item 3
    1. Item 3 need not be answered as to any default or arrearage with 
respect to any class of securities all of which is held by or for the 
account of the registrant or its totally held subsidiaries.
    2. The information required by Item 3 need not be made if 
previously disclosed on a report on Form 8-K (17 CFR 249.308).
* * * * *
Item 5. Other Information
    The registrant must disclose under this item any information 
required to be disclosed in a report on Form 8-K during the period 
covered by this Form 10-Q, but not reported, whether or not otherwise 
required by this Form 10-Q. If disclosure of such information is made 
under this item, it need not be repeated in a report on Form 8-K which 
would otherwise be required to be filed with respect to such 
information or in a subsequent report on Form 10-Q.
* * * * *

0
21. Amend Form 10-QSB (referenced in Sec.  249.308b) by:
0
a. Revising the heading for Item 2 in Part II--Other Information;
0
b. Removing Items 2(a), 2(b) and 6(b);
0
c. Redesignating paragraphs (c), (d) and (e) in Item 2 as paragraphs 
(a), (b) and (c);
0
d. Revising newly redesignated paragraph (a) in Item 2;
0
e. Revising the Instructions to Item 3;
0
f. Revising Item 5;
0
g. Removing the words ``and Reports on Form 8-K'' from the heading of 
Item 6; and
0
h. Removing the paragraph (a) designation in Item 6.
    The revisions read as follows:


    Note The text of Form 10-QSB does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-QSB

* * * * *

Part II--Other Information

* * * * *
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
    (a) Furnish the information required by Item 701 of Regulation S-B 
(17 CFR 228.701) as to all equity securities of the small business 
issuer sold by the small business issuer during the period covered by 
the report that were not registered under the Securities Act. If the 
Item 701 information previously has been included in a Current Report 
on Form 8-K (17 CFR 249.308), however, it need not be furnished.
* * * * *
Item 3. Defaults Upon Senior Securities
* * * * *
    Instructions to Item 3
    1. Item 3 need not be answered as to any default or arrearage with 
respect to any class of securities all of which is held by or for the 
account of the small business issuer or its totally held subsidiaries.
    2. The information required by Item 3 need not be made if 
previously disclosed on a report on Form 8-K (17 CFR 249.308).
* * * * *
Item 5. Other Information
    The small business issuer must disclose under this item any 
information required to be disclosed in a report on Form 8-K during the 
period covered by this Form 10-QSB, but not reported, whether or not 
otherwise required by this Form 10-QSB. If disclosure of such 
information is made under this item, it need not be repeated in a 
report on Form 8-K which would otherwise be required to be filed with 
respect to such information or in a subsequent report on Form 10-QSB.
* * * * *

0
22. Amend Form 10-K (referenced in Sec.  249.310) by:
0
a. Revising Items 5(a) and 9;
0
b. Adding Item 9B;
0
c. Revising the heading of Item 15 to read ``Exhibits and Financial 
Statement Schedules.'';
0
d. Removing paragraph (b) of Item 15; and
0
e. Redesignating paragraphs (c) and (d) in Item 15 as paragraphs (b) 
and (c).
    The revisions read as follows:


    Note The text of Form 10-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-K--Annual Report Pursuant to Section 13 or 15(d) of the 
Securities Exchange Act of 1934

* * * * *

Item 5. Market for Registrant's Common Equity and Related Stockholder 
Matters

    (a) Furnish the information required by Item 201 of Regulation S-K 
(17 CFR 229.201) and Item 701 of Regulation S-K (17 CFR 229.701) as to 
all equity securities of the registrant sold by the registrant during 
the period covered by the report that were not registered under the 
Securities Act other than unregistered sales made in reliance on 
Regulation S (17 CFR 230.901 through 230.905). If the Item 701 
information previously has been included in a Quarterly Report on Form 
10-Q or 10-QSB (17 CFR 249.308a or 249.308b), or in a Current Report on 
Form 8-K (17 CFR 249.308), it need not be furnished.
* * * * *

Item 9. Changes in and Disagreements With Accountants on Accounting and 
Financial Disclosure

    Furnish the information required by Item 304(b) of Regulation S-K 
(Sec.  229.304(b) of this chapter).
* * * * *

Item 9B. Other Information

    The registrant must disclose under this item any information 
required to be disclosed in a report on Form 8-K during the fourth 
quarter of the year covered by this Form 10-K, but not reported, 
whether or not otherwise required by this Form 10-K. If

[[Page 15629]]

disclosure of such information is made under this item, it need not be 
repeated in a report on Form 8-K which would otherwise be required to 
be filed with respect to such information or in a subsequent report on 
Form 10-K.
* * * * *

0
23. Amend Form 10-KSB (referenced in Sec.  249.310a) by:
0
a. Revising Items 5(a) and 8 in Part II;
0
b. Adding Item 8B in Part II;
0
c. Removing the words ``and Reports on Form 8-K'' from the heading to 
Item 13;
0
d. Removing paragraph (b) of Item 13 in Part III;
0
e. Removing the paragraph (a) designation in Item 13;
0
f. Revising Item 3 in Part II of ``Information Required in Annual 
Report of Transitional Small Business Issuers''; and
0
g. Removing Item 6 in Part II of ``Information Required in Annual 
Report of Transitional Small Business Issuers''.
    The revisions read as follows:

    Note The text of Form 10-KSB does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-KSB

    (Check one)
[ ] Annual Report Pursuant to Section 13 or 15(d) of the Securities 
Exchange Act of 1934
* * * * *

Part II

Item 5. Market for Common Equity and Related Stockholder Matters
    (a) Furnish the information required by Item 201 of Regulation S-B 
and Item 701 of Regulation S-B as to all equity securities of the small 
business issuer sold by the small business issuer during the period 
covered by the report that were not registered under the Securities 
Act. If the Item 701 information previously has been included in a 
Quarterly Report on Form 10-Q or 10-QSB, or on a Current Report on Form 
8-K, however, it need not be furnished.
* * * * *
Item 8. Changes In and Disagreements With Accountants on Accounting and 
Financial Disclosure
    Furnish the information required by Item 304(b) of Regulation S-B.
* * * * *
Item 8B. Other Information
    The small business issuer must disclose under this item any 
information required to be disclosed in a report on Form 8-K during the 
fourth quarter of the year covered by this Form 10-KSB, but not 
reported, whether or not otherwise required by this Form 10-KSB. If 
disclosure of such information is made under this item, it need not be 
repeated in a report on Form 8-K which would otherwise be required to 
be filed with respect to such information or in a subsequent report on 
Form 10-KSB.
* * * * *

Information Required in Annual Report of Transitional Small Business 
Issuers

* * * * *

Part II

Item 3. Changes In and Disagreements With Accountants
    Furnish the information required by Item 304(b) of Regulation S-B, 
if applicable.
* * * * *

    Dated: March 16, 2004.

    By the Commission.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 04-6332 Filed 3-24-04; 8:45 am]
BILLING CODE 8010-01-P