It is common knowledge in the public company community that a Form 8-K is generally required to be filed within four business days after the occurrence of a triggering event. This is expressed in General Instruction B.1. on Form 8-K. While many of the items in Form 8-K are fairly straightforward as it relates to when the “event” occurs, not all are this way. 

In particular, the events under Item 5.02 of Form 8-K involving appointments and departures of directors and executive officers can be particularly challenging as it relates to determining exactly when the obligation to report the event is triggered. Therefore, we were particularly interested in this recent SEC staff comment letter exchange where the SEC staff is questioning the timeliness of an 8-K that reports a director resignation.   

Background 

Under Item 5.02(b) of Form 8-K, if a director retires, resigns, is removed, or refuses to stand for re-election, the company will need to disclose that the event has occurred and the date of the event in a Form 8-K. If a director resigns due to a disagreement with the company, disclosure is required under Item 5.02(a) rather than Item 5.02(b).   

Unfortunately, director resignations are not as brightline as the item seems to indicate, which is why the SEC staff has provided guidance in the form of a Compliance & Disclosure Interpretation related to this issue. In this regard, Exchange Act Form 8-K C&DI 117.01 states: 

Question 117.01 

Question: When is the obligation to report an event specified in Item 5.02(b) of Form 8-K triggered? Must the Form 8-K filed to report an Item 5.02(b) event disclose the effective date of the resignation or other event?

Answer: With respect to any resignation, retirement or refusal to stand for re-election reportable under Item 5.02(b), other than in the corporate governance policy situations addressed in Question 117.15, the Form 8-K reporting obligation is triggered by a notice of a decision to resign, retire or refuse to stand for re-election provided by the director, whether or not such notice is written, and regardless of whether the resignation, retirement or refusal to stand for re-election is conditional or subject to acceptance. The disclosure shall specify the effective date of the resignation or retirement. In the case of a refusal to stand for re-election, the registrant must disclose when the election in question will occur, for example, at the registrant's next annual meeting. No disclosure is required solely by reason of Item 5.02(b) of discussions or consideration of resignation, retirement or refusal to stand for re-election. Whether communications represent discussion or consideration, on the one hand, or notice of a decision, on the other hand, is a facts and circumstances determination. A registrant should ensure that it has appropriate disclosure controls and procedures in place – for example, a board policy that all directors must provide any such notice directly to the corporate secretary – to determine when a notice of resignation, retirement or refusal has been communicated to the registrant. [June 26, 2008] (emphasis added) 

Therefore, the Compliance & Disclosure Interpretation (C&DI) states that the Form 8-K reporting obligation is triggered by a notice of a decision to resign — regardless of whether the notice is written — and regardless of whether the resignation is conditional or subject to acceptance.  Importantly, the C&DI clarifies that mere discussions or consideration of resignation is not a trigger; however, it acknowledges that whether communications represent discussion, on the one hand, or notice of a decision, on the other hand, is a facts and circumstances determination.   

The line between “notice of a decision” and “discussion or consideration” arises more often than one might expect. Even amicable departures — like retirements or personal leaves — can raise judgment calls about when Item 5.02(b) of Form 8-K requires disclosure. The key question is whether the director’s communication is merely exploring or considering a resignation (no Form 8-K triggered) or constitutes notice of a decision to resign (Form 8-K triggered). That determination is highly dependent on the specific facts and circumstances.  

Because of the ambiguity involved, it is critical to make sure all parties (especially the director and senior leadership having the discussions) are aware of the rules of the road for when an 8-K might be triggered. In fact, we often provide a “rules of the road” memo to leadership to make sure they are aware of these issues and avoid inadvertently triggering a Form 8-K. 

A failure to timely file an Item 5.02(b) 8-K will disqualify the issuer from using the short form S-3 registration statement for at least year, so getting a firm grasp of the determination date is also important for future capital raising activities. 

SEC Staff Comment Letter 

Given this background information, we found the comment letter exchange particularly interesting because it reveals how difficult it can be for companies to precisely determine the “triggering date” in a director resignation situation. The SEC staff’s comment is presented first, with the company’s response directly beneath.  

“Registration Statement on Form S-3 

General 

1. This registration statement was filed on Form S-3 and we note that you filed a current report on Form 8-K on August 30, 2024 relating to the resignation of a director that occurred on August 25, 2024. Since that Form 8-K was not timely filed based on Item 5.01 of Form 8-K, you do not appear eligible at this time to use Form S-3 pursuant to Instruction I.A of Form S-3. Please explain why you believe you are eligible to use this form or, alternatively, please amend your registration statement to an appropriate form. 

Response: The Company respectfully submits that it is eligible to use Form S-3 at this time. 

While the Company’s Form 8-K filed on August 30, 2024, originally stated that the resignation of director Edward Cong Wang occurred on August 25, 2024, this was later clarified and corrected in Amendment No. 1 to the Form 8-K, filed on July 22, 2025. As explained in that amendment, although Mr. Wang submitted a written resignation via e-mail on Sunday, August 25, 2024, the Company contacted him on Monday, August 26, 2024, to confirm his resignation and ask whether he intended to exercise his contractual right to designate a successor. Mr. Wang responded later that day and confirmed that he would not be appointing a replacement. Accordingly, the Company reasonably determined that the resignation became finalized and effective on Monday, August 26, 2024—the date on which the necessary corporate steps were complete and the Company could determine the resulting board vacancy and compliance implications. 

Thus, the Company filed the original Form 8-K within four business days of August 26, 2024, consistent with Item 5.02 of Form 8-K and Instruction I.A.4 to Form S-3, which requires timely filing of all required reports. The correction made in the amended Form 8-K/A was intended solely to clarify the effective date in line with the Company’s good-faith interpretation of when the resignation was finalized. 

Accordingly, the Company respectfully submits that the Form 8-K was timely filed, and the Company remains eligible to use Form S-3 at this time.” 

The SEC staff appears to have accepted this response because it declared the S-3 registration statement effective a few days later. 

Takeaways 

• This comment letter exchange reveals the difficulties involved with assessing the triggering date for Item 5.02 8-K purposes. There is judgment involved in many situations whether a “notice” (which can sometimes be oral) is really a notice at all, or merely a step in the discussion phase. 
• We recommend providing senior leadership with a “rules of the road” memo that helps them understand the triggering event nuances at a practical level. 
• We also recommend ensuring the company has adequate disclosure controls and procedures in place related to director resignation.  For example, some companies have a formal policy in place that requires that a resignation be tendered in writing to the corporate secretary.  This framework is even baked into C&DI 117.01 when it states, “A registrant should ensure that it has appropriate disclosure controls and procedures in place – for example, a board policy that all directors must provide any such notice directly to the corporate secretary – to determine when a notice of resignation, retirement or refusal has been communicated to the registrant.”