Barnes & Thornburg’s Jay Knight flagged a comment letter exchange in which the Staff questioned the timeliness of a company’s Form 8-K reporting a director’s resignation.  Form 8-K CDI 117.01 says that an Item 5.02 8-K reporting obligation is triggered by a director’s notice of a decision to resign. The guidance is pretty clear, but as Klotho Neurosciences’ response to a Staff comment challenging its S-3 eligibility illustrates, the trick is applying it:

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.

The good news is that the Staff didn’t comment further on this issue, but Jay says there are some lessons in this comment letter exchange that all public companies should keep in mind. These include the need to provide directors and officers with a “rules of the road” memo that helps them understand nuances associated with determining when a director resignation triggering event has occurred, and the need to ensure that appropriate disclosure controls and procedures are in place related to director resignations.

If you’re looking for some guidance on director and NEO resignation issues, check out our Form 8-K Handbook.  We have Q&As in the Handbook that address a bunch of different “did they or didn’t they?” scenarios.

– John Jenkins