[Federal Register Volume 69, Number 153 (Tuesday, August 10, 2004)]
[Rules and Regulations]
[Pages 48370-48371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18118]



[[Page 48370]]

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 239, 249

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


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

AGENCY: Securities and Exchange Commission.

ACTION: Final rule; technical amendments.

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SUMMARY: We are making technical corrections to rules adopted in 
Release No. 33-8400 (March 16, 2004), which were published in the 
Federal Register on March 25, 2004 (69 FR 15593). The rules adopt 
amendments that increase the number of events requiring disclosure on 
Form 8-K and accelerate the filing deadline for that form. This 
document corrects certain errors in the regulatory text of the adopting 
release.

DATES: Effective August 23, 2004.

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

SUPPLEMENTARY INFORMATION:

I. Discussion

    On November 24, 2003 in Release No. 33-8340,\1\ we added paragraph 
(b) to Item 5 of Form 10-Q \2\ and Item 5 of Form 10-QSB,\3\ which 
requires companies to disclose information regarding changes to the 
procedures by which security holders may recommend nominees to the 
company's board of directors. In Release 33-8400 (the ``Adopting 
Release''),\4\ we adopted amendments to these items that inadvertently 
deleted paragraph (b). These amendments clarify that paragraph (b) is 
not deleted from Item 5 of Forms 10-Q and 10-QSB.
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    \1\ Release No. 33-8340 (Nov. 24, 2003) [68 FR 66992].
    \2\ 17 CFR 249.308a.
    \3\ 17 CFR 249.308b.
    \4\ 69 FR 15593.
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    Also, the regulatory text in the Adopting Release states that, with 
regard to disclosures under Item 2.01 of Form 8-K, Completion of 
Acquisition or Disposition of Assets, disclosure of the identity of the 
source of funding need only be made when a material relationship exists 
between the company and the person from whom the assets were acquired. 
However, the release discussion is inconsistent with the regulatory 
text inasmuch as the release discussion indicates that disclosure of 
the source of funding must be made if a material relationship exists 
between the company and the source of funding. We are revising the 
regulatory text to be consistent with the release discussion, which was 
our original intent and consistent with commenters' remarks.
    In addition, in the Adopting Release, we adopted amendments to add 
three checkboxes to the cover of Form 8-K to allow companies to satisfy 
specified overlapping Form 8-K and Regulation M-A disclosure 
obligations in a single filing on Form 8-K. These amendments add a 
fourth checkbox to allow a company to satisfy the disclosure 
requirements of Rule 13e-4(c),\5\ the Regulation M-A provision for 
issuer tender offers, by including that disclosure in a Form 8-K. Also, 
to clarify that a Form 8-K report that satisfies the filing 
requirements of Rule 14a-12(b) \6\ must contain all of the information 
required by Rule 14a-12, we are revising the reference in the newly 
adopted second checkbox to remove the paragraph (b) designation.
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    \5\ 17 CFR 240.13e-4(c).
    \6\ 17 CFR 240.14a-12(b).
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    These amendments also redesignate paragraphs (a)(5)(1) and (2) of 
Item 5.01 of Form 8-K, Changes in Control of Registrant, as paragraphs 
(a)(5)(i) and (ii). A further correction pertains to Item 5.05(c) 
(formerly Item 10) of Form 8-K, Amendments to the Registrant's Code of 
Ethics, or Waiver of a Provision of the Code of Ethics, which provides 
that a company need not file a Form 8-K report regarding a waiver from, 
or amendment to, its code of ethics that applies to its principal 
executive officer, principal financial officer, principal accounting 
officer or controller or persons performing similar functions if it 
posts the required disclosure on its Web site.\7\ We are correcting 
this item to state that a company disclosing an amendment to, or waiver 
from, such code of ethics on its Web site must do so within four 
business days after the date on which the code is amended or the waiver 
is granted in order to comply with paragraph (c) of the item, rather 
than within five business days of such date.\8\ We intended the 
deadline to parallel the general Form 8-K four business day filing 
deadline.
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    \7\ A company may do so if it has indicated in its most recent 
annual report that it intends to make such disclosures in this 
manner.
    \8\ See General Instruction B.1 to Form 8-K.
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    In Item 1.03 of Form 8-K, Bankruptcy or Receivership, we are 
revising the reference to the Bankruptcy Act to refer instead to the 
U.S. Bankruptcy Code \9\ to acknowledge the revisions made by the 
Bankruptcy Reform Act of 1978. Also, in the instructions to Forms S-2 
and S-3, we are changing incorrect references to Section 12 \10\ of the 
Exchange Act to refer to Section 13 \11\ instead.
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    \9\ 11 U.S.C.
    \10\ 15 U.S.C. 78l.
    \11\ 15 U.S.C. 77m.
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    Finally, we are correcting revisions to Item 5(a) of Form 10-K 
which erroneously included previously deleted regulatory text 
permitting the exclusion of sales made under Regulation S.\12\
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    \12\ See Release No. 33-7505 (Feb. 17, 1998) [63FR 9632].
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II. Certain Findings

    Under the Administrative Procedure Act (``APA''), notice of 
proposed rulemaking is not required when an agency, for good cause, 
finds ``that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' \13\ The correcting 
amendments to Form 8-K are technical changes that correct cross-
references, correct paragraph numbering, conform the text to the stated 
intent of the Commission, replace text accidentally removed, and delete 
text previously removed. For these reasons, the Commission finds that 
there is no need to publish notice of these amendments.\14\ The APA 
also requires publication of a rule at least 30 days before its 
effective date unless the agency finds otherwise for good cause.\15\ 
For the same reasons described with respect to opportunity for notice 
and comment, the Commission finds there is good cause for the 
amendments to take effect on August 23, 2004.
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    \13\ 5 U.S.C. 553(b)(3)(B).
    \14\ For similar reasons, the amendments do not require analysis 
under the Regulatory Flexibility Act or analysis of major status 
under the Small Business Regulatory Enforcement Fairness Act. See 5 
U.S.C. 601(2) (for purposes of Regulatory Flexibility Act analyses, 
the term ``rule'' means any rule for which the agency publishes a 
general notice of proposed rulemaking); 5 U.S.C. 804(3)(C) (for 
purposes of congressional review of agency rulemaking, the term 
``rule'' does not include any rule of agency organization, 
procedure, or practice that does not substantially affect the rights 
or obligations of non-agency parties).
    \15\ See 5 U.S.C. 553(d)(3).
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III. Need for Correction

    As published, the final regulations contain errors which are in 
need of clarification.

IV. Correction of Publication

    Accordingly, the publication on March 25, 2004 of the final rules

[[Page 48371]]

(Release No. 33-8400) relating to the addition of new Form 8-K 
disclosure requirements and acceleration of the filing date for that 
form, which was the subject of FR Doc. 04-6332, is corrected as 
follows.

    Note: These corrections to Form S-2 (17 CFR 239.12), Form S-3 
(17 CFR 239.13), Form 8-K (17 CFR 249.308), Form 10-Q (17 CFR 
249.308a), Form 10-QSB (17 CFR 249.308b) and Form 10-K (17 CFR 
249.310) do not appear in the Code of Federal Regulations.

    1. On page 15618, first column, eleventh line, revise the reference 
``Section 12'' to read ``Section 13''.
    2. On page 15618, second column, fifth line of paragraph I.A.3.(a) 
under General Instructions, revise the reference ``Section 12'' to read 
``Section 13''.
    3. On page 15619, first column, second line of the second checkbox, 
revise the reference to ``14a-12(b)'' to read ``14a-12''.
    4. On page 15619, first column, third line of the second checkbox, 
revise the reference to ``(17 CFR 240.14a-12(b))'' to read ``(17 CFR 
240.14a-12)''.
    5. On page 15619, first column, add the following checkbox above 
the General Instructions.
    ``[] Pre-commencement communications pursuant to Rule 13e-4(c) 
under the Exchange Act (17 CFR 240.13e-4(c))''
    6. On page 15620, second column, fourth line of paragraph (a) under 
Item 1.03 Bankruptcy or Receivership, revise the reference ``Bankruptcy 
Act'' to read ``U.S. Bankruptcy Code''.
    7. On page 15620, third column, revise paragraph (e) under Item 
2.01Completion of Acquisition or Disposition of Assets to read as 
follows:
    ``(e) if the transaction being reported is an acquisition and if a 
material relationship exists between the registrant or any of its 
affiliates and the source(s) of the funds used in the acquisition, the 
identity of the source(s) of the funds 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:''
    8. On page 15625, third column, redesignate paragraphs (a)(5)(1) 
and (a)(5)(2) of Item 5.01 as paragraphs (a)(5)(i) and (a)(5)(ii).
    9. On page 15627, first column, fifth line of paragraph (c) of Item 
5.05, revise the word ``five'' to read ``four''.
    10. On page 15628, first column, revise amendatory instruction 
20.f. to read:
    ``f. Revising Item 5(a);''.
    11. On page 15628, first column, first line under ``Item 5. Other 
Information,'' designate the paragraph as paragraph (a).
    12. On page 15628, in the second column, revise amendatory 
instruction 21.f. to read:
    ``f. Revising Item 5(a);''.
    13. On page 15628, second column, first line under ``Item 5. Other 
Information,'' designate the paragraph as paragraph (a).
    14. On page 15628, third column, eighth through eleventh lines in 
paragraph (a) under ``Item 5. Market for Registrant's Common Equity and 
Related Stockholder Matters,'' remove the phrase ``other than 
unregistered sales made in reliance on Regulation S (17 CFR 230.901 
through 230.905)''.

    By the Commission.

    Dated: August 4, 2004.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 04-18118 Filed 8-9-04; 8:45 am]
BILLING CODE 8010-01-P