Item 5.02 Officer & Director Change Pack
Which paragraph of Item 5.02 each departure, appointment or pay arrangement falls under, what the Form 8-K must say, the date it is due, and the amendments that follow.
One entry per event. A CFO who leaves and the replacement who is appointed the same day are two events, under two different paragraphs, and the replacement’s offer letter may be a third.
Informational only — not audit, attest, legal, tax, or investment advice. We are the preparer, never the filer of record. Unfolding Values is not an audit firm.
Item 5.02: six paragraphs, three lists of officers, and the clocks after the filing
Item 5.02 looks like one obligation. It is six. A chief financial officer who resigns, the replacement appointed the same afternoon, and the replacement’s offer letter are three events under three paragraphs, (b), (c) and (e), and each paragraph names a different set of officers. Departures reach the principal executive, financial, accounting and operating officers, the president, anyone performing similar functions, and any named executive officer. Appointments reach the same offices but not named executive officers. Pay arrangements reach only the principal executive officer, the principal financial officer and the named executive officers.
The clock is General Instruction B.1: four business days from the event, and where the event falls on a weekend or a Federal holiday the period begins on, and includes, the next business day. Two things move it. The Instruction to paragraph (c) lets an appointment report wait for the day the company otherwise announces it. And the Form does not say whether a resignation occurs when notice is given or when it takes effect, so where the two differ this tool counts from the earlier and prints why, rather than choosing silently.
The filing is not always the end of it. A director who leaves over a disagreement is entitled to answer in a letter, and that letter is filed by amendment within two business days of receipt. Information that is not settled when the report is due goes in by amendment within four business days of being settled, but only for the three paragraphs Instruction 2 names. This tool lists each of those follow-on filings with its own due date, alongside the report itself.
It does not decide whether a disagreement caused a departure, whether a removal was for cause, or whether an arrangement or a grant is material. Those judgments decide which paragraph applies, and the tool asks for them rather than assuming an answer. It produces a draft of the Item 5.02 text with every fact it does not have left in brackets, for the preparer to complete and counsel to review.
Frequently asked questions
Our president is getting a new employment agreement. Is that an Item 5.02(e) event?
Only if the president is also the principal executive officer, the principal financial officer, or a named executive officer. Paragraph (e) reaches a material plan, contract or arrangement “as to which the registrant’s principal executive officer, principal financial officer, or a named executive officer participates or is a party.” The president, the principal accounting officer and the principal operating officer are named in paragraphs (b) and (c), for departures and appointments, but not in paragraph (e). Three paragraphs, three different lists of officers.
Who counts as a named executive officer for Item 5.02?
Instruction 4 to Item 5.02 fixes it by reference to a document: the term refers to “those executive officers for whom disclosure was required in the registrant’s most recent filing with the Commission” that required Item 402(c) disclosure. It is not a judgment about who is senior today. Someone who joined after the last proxy statement is not yet a named executive officer for this purpose, and someone who was named in it still is.
A director resigned and told us why. When is that paragraph (a) rather than paragraph (b)?
When the resignation, or a refusal to stand for re-election, was because of a disagreement with the registrant, known to an executive officer, on a matter relating to its operations, policies or practices, or when the director was removed for cause. Paragraph (a) then requires the date, the committees the director sat on, a description of the circumstances, any written correspondence as an exhibit, a copy of the disclosure to the director no later than the filing day, and the director’s reply letter filed by amendment “within two business days after receipt by the registrant.” Every other director departure is paragraph (b): the fact and the date.
We will announce the new CFO by press release next week. Can the 8-K wait?
The Instruction to paragraph (c) says 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.” So the report can be filed on the day of the press release, even if that is after the ordinary four business days. The tool reads that as a permission to delay and nothing more: if the announcement comes sooner, the ordinary due date still stands. Note that the permission is in paragraph (c) only. It does not reach the outgoing CFO’s departure under paragraph (b), which keeps its own clock.
The new officer’s pay has not been agreed yet. What goes in the 8-K?
Instruction 2 to Item 5.02 covers it for three paragraphs: where information called for by Item 5.02(c)(3), (d)(3) or (d)(4) “is not determined or is unavailable at the time of the required filing,” the report says so and an amendment follows “within four business days after the information is determined or becomes available.” The instruction names those three and no others. It does not name (c)(2), which carries the Item 401 and Item 404(a) information for a new officer, and it does not name (d)(5), a new director’s arrangement.
We already put the resignation in a press release. Is that previously reported?
No. General Instruction B.3 excuses information that has been previously reported, and Rule 12b-2 defines the term narrowly: a statement under section 12, a report under section 13 or 15(d), a definitive proxy or information statement, or a Securities Act registration statement. A press release, a website post and an earnings call are none of those. A Form 10-Q filed inside the four business days that carries substantially the same information is.