Key Takeaways:
- Since Friday, March 10, 2023, more than 300 public companies have filed current reports on Form 8-K regarding the closure of Silicon Valley Bank ("SVB").
- Company disclosure in these 8-Ks falls essentially into four categories: (i) no commercial relationship with SVB; (ii) minimal commercial relationship with SVB and minimal exposure to deposit risk; (iii) significant commercial relationship with SVB with some deposit/loan risk, not anticipated to be material; and (iv) significant commercial relationship with SVB with deposit/loan risk that is expected to be material.
- While much of the immediate crisis appears to have abated, in the days ahead, public companies should be mindful of current and potential future disclosure obligations related to the SVB receivership.
Since Friday, March 10, 2023, more than 300 public companies
have filed current reports on Form 8-K regarding the closure of
Silicon Valley Bank ("SVB"). Company disclosure in these
8-Ks falls essentially into four categories: (i) no commercial
relationship with SVB; (ii) minimal commercial relationship with
SVB and minimal exposure to deposit risk; (iii) significant
commercial relationship with SVB with some deposit/loan risk, not
anticipated to be material; and (iv) significant commercial
relationship with SVB with deposit/loan risk that is expected to be
material. The overwhelming majority of filings fall into the first
two categories and some companies have amended previously filed
8-Ks to report full access to deposited funds following the
adoption of emergency measures by the Treasury, Federal Reserve and
FDIC.
While much of the immediate crisis appears to have abated, in the
days ahead, public companies should be mindful of current and
potential future disclosure obligations related to the SVB
receivership. Areas to consider include:
- The potential need or desirability of voluntary (Item 7.01)
Form 8-K disclosure regarding ongoing exposure related to SVB
accounts to facilitate discussions with stockholders and analysts
without running afoul of selective disclosure rules.
- Companies should identify areas of focus, such as availability of funds under existing credit facilities in which SVB is a lender, and determine what is material for purposes of Regulation FD.
- Triggering events requiring Form 8-K filings related to
existing credit facilities and loan documents such as:
- potential defaults resulting from the transfer of funds out of SVB accounts that could trigger an Item 2.03 Form 8-K
- termination of SVB agreements that could trigger an Item 1.02 Form 8-K
- removal or replacement of SVB as a lender under a credit facility or loan agreement that could trigger an Item 1.01 Form 8-K
- For companies that have not yet filed their annual reports on Form 10-K, consider if additional risk factors are warranted and review and update MD&A to reflect any updates to the liquidity section. Companies with longer timelines prior to their next periodic report may take a wait-and-see approach to assess the fallout and avoid the need to correct or amend prior disclosures.
- For companies that are engaged in or expect to be engaged in registered offerings (or have ATMs or other ongoing offerings), consider what disclosure needs to be filed and incorporated into effective registration statements to update the company's disclosure, including as to their cash management practices.
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