A few days ago, Corp Fin dropped another raft of CFIs. Most of them are of the “housekeeping” nature – but three of them are interesting because they deal with how to apply the tests to determine if an acquisition or disposition is of “significant amount of assets” under Item 2.01 of Form 8-K.
Cooley’s Chad Mills points out that new Question 105.03 is particularly noteworthy because prior to the CFI practitioners looked to the S-X business acquisition significance tests for purposes of determining whether an asset acquisition trips the Item 2.01 Instruction 4(i) test, which is to say that assets are looked at as of the most recent audited balance sheet date – not the most recent balance sheet date. So this is a change from current practice that companies should be aware of.
Here are those three CFIs related to Item 2.01 of Form-8-K:
Question 105.01
Question: Instruction 4 to Item 2.01 of Form 8-K provides how to determine whether an acquisition or disposition is deemed to involve a significant amount of assets for the purpose of compliance with this Item. That determination is based upon paragraphs (i), (ii) and (iii) of Instruction 4. Are registrants required to determine whether the acquisition or disposition is significant by applying each of the three paragraphs?
Answer: No. Registrants need only apply the applicable paragraph in Instruction 4 as follows: If the registrant is a business development company and it did not acquire or dispose of a business as determined under Rule 11-01(d) of Regulation S-X, apply only paragraph (iii); if the registrant acquired or disposed of a business as determined under Rule 11-01(d) of Regulation S-X, apply only paragraph (ii); and if the registrant is not a business development company and it did not acquire or dispose of a business as determined under Rule 11-01(d) of Regulation S-X, apply only paragraph (i). [October 21, 2026]
Question 105.02
Question: Instruction 4 to Item 2.01 of Form 8-K provides that the aggregate impact of acquired businesses is not subject to the significance thresholds in paragraph (ii) of that instruction unless they are related businesses (see Rule 3-05(a)(3) of Regulation S-X), related real estate operations (see Rule 3-14(a)(3) of Regulation S-X), or related funds (see Rule 6-11(a)(3) of Regulation S-X). The referenced rules provide criteria regarding when businesses, real estate operations and funds are deemed to be related and which of those, including ones that are probable of being acquired, must be treated together as a single business acquisition for purposes of applying those rules. Does the reference to these rules in Instruction 4 require registrants to include probable acquisitions of related businesses, real estate operations, and funds with the related businesses, real estate operations, and funds that have already been acquired when assessing aggregate significance for purposes of Item 2.01 reporting?
Answer: No. For purposes of Item 2.01 reporting, registrants should not include probable acquisitions of related businesses, real estate operations, or funds in the assessment of aggregate significance, because Item 2.01 of Form 8-K only requires disclosure regarding completed acquisitions. The references to Rule 3-05(a)(3) of Regulation S-X, Rule 3-14(a)(3) of Regulation S-X, and Rule 6-11(a)(3) of Regulation S-X are only intended to be used for the determination of whether acquired businesses, real estate operations, or funds are deemed to be related. [October 21, 2026]
Question 105.03
Question: For acquisitions and dispositions that are not acquisitions or dispositions of businesses as determined under Rule 11-01(d) of Regulation S-X, which balance sheet date should registrants use to derive “the total assets of the registrant and its consolidated subsidiaries” required for the significance test outlined in paragraph (i) of Instruction 4 to Item 2.01 of Form 8-K?
Answer: Registrants should use their most recent balance sheet required to be filed at or prior to the date of the acquisition or disposition, which may be an interim balance sheet. [October 21, 2026]
Authored by
Broc Romanek