New Form 8-K Item 5.07 Will Affect S-3 Eligibility

As part of its recently adopted Final Rules on Proxy Disclosure Enhancements, the SEC added a new Item 5.07 to Form 8-K.  Item 5.07 requires a company to report the results of voting at any shareholders meeting within four business days after the meeting at which the vote was held.  If final results are not available by the end of the four business day deadline, a company may instead report the preliminary voting results.  In this situation, the company must then file an amended Item 5.07 Form 8-K within four business days after the final results become available to report those final results.

We believe that this new requirement fills a substantial disclosure gap because the results of the vote at a shareholders meeting previously were disclosed on an issuer's next filed Form 10-Q or 10-K, often more than 60 days after the actual meeting.

Importantly, new Item 5.07 is also one of the Form 8-K items where a failure to timely file will cause a company to lose its ability to file a "short form" registration statement on Form S-3.