Item 601(b)(10): Material Contracts, Filing, and Redactions

Under Item 601(b)(10) of Regulation S-K, a public company must file as an Exhibit 10 every material contract that is not made in the ordinary course of business and that will be performed in whole or in part at or after the date of the filing.¹ A handful of contract types are treated as material even when they are ordinary course, and the rule reaches oral arrangements as well as written ones. The practical questions for filers are which agreements qualify, when they have to be filed, and what can be redacted before they hit EDGAR.

Which Contracts Qualify as Material

The threshold question is materiality. The Supreme Court’s test in TSC Industries, Inc. v. Northway, Inc. controls: information is material if there is a substantial likelihood that a reasonable investor would consider it important in making an investment decision. The Court did not require proof that the information would have changed the investor’s decision, only that it would have “significantly altered the ‘total mix’ of information made available.”²

That test is deliberately flexible. A licensing agreement worth 3% of revenue may be immaterial for a diversified conglomerate and central for a single-product biotech. Filers have to weigh both dollar amounts and qualitative significance — the contract’s role in strategy, competitive position, and financial condition.

For a company filing with the SEC for the first time, the look-back reaches further back in time. A newly reporting company must also file any material contract entered into within the two years before its first filing, even if it has already been fully performed. The same rule applies to companies that complete a transaction ending their status as a public shell.¹

Contracts That Are Always Material

Certain categories must be filed even when the company considers them ordinary course. The regulation treats them as inherently significant enough to warrant investor access.

Related-party contracts. Agreements involving directors, officers, promoters, voting trustees, security holders named in the filing, or underwriters. Routine purchases or sales of current assets at determinable market prices are the only exception.¹
Contracts the business substantially depends on. Agreements to purchase the bulk of raw materials or sell the bulk of products, and similar arrangements the company could not readily replace.¹
Large asset transactions. Any contract for the acquisition or sale of property, plant, or equipment where the price exceeds 15% of the company’s consolidated fixed assets.¹
Material leases. Any lease under which part of the property described in the filing is held by the company. No specific dollar threshold applies; the lease simply has to be material.¹

Outside these enumerated categories, merger agreements, significant credit facilities, and technology licenses that underpin the company’s core strategy will typically qualify under the general standard. The working question is whether losing the contract would meaningfully change the company’s financial outlook.

What Can Be Left Out

The broadest exclusion is for contracts made entirely in the ordinary course of business that do not fall into any of the categories above. Routine supply contracts, standard customer agreements, and typical office leases generally stay off the filing list.

Executive compensation has its own rules. Management contracts and compensatory plans must be filed if any director or named executive officer participates. Compensatory arrangements involving other executive officers are also filed unless they are immaterial in amount or significance. Broad-based plans available to employees generally, using the same benefit allocation for management and non-management participants, are excluded.¹ An individual award agreement under a previously filed plan does not need separate filing unless it contains terms investors would need to understand that officer’s compensation and that are not already disclosed in the plan.³

Immaterial schedules and attachments to an exhibit can be omitted, provided the omission does not remove disclosures that are otherwise missing from the exhibit or the filing. When schedules are dropped, the exhibit must include a brief list identifying what was left out.⁴

Oral Agreements Are Not a Loophole

The rule is not limited to written contracts. If the company has an oral agreement that would be required as an exhibit had it been written, a written description of that agreement must be provided instead. The SEC has confirmed that this extends to “summary sheets” memorializing compensation terms between the company and its directors or officers: if the summary sheet functions as the agreement, it has to be filed.³ The obligation follows the substance of the arrangement, not the form of the paper.

When Filing Is Due

Two timing paths exist, and companies routinely use both.

When the company enters into a material agreement outside the ordinary course of business, it must file a current report on Form 8-K within four business days under Item 1.01. The 8-K has to describe the date of the agreement, the parties, and the material terms. The Form 8-K instructions also clarify that agreements in the categories listed in Item 601(b)(10)(ii)(A) through (D), such as related-party contracts and large asset transactions, are deemed outside the ordinary course even if the company enters similar deals regularly.⁴

A contract that does not trigger an immediate 8-K still has to be filed as an exhibit to the periodic report covering the period in which it was executed. On Form 10-Q, only contracts executed or becoming effective during the most recent quarter need to be attached.⁵ A contract that was not material when signed but later becomes material must be filed with the periodic report for the period in which it first became material.³

Once an exhibit is on file, it does not have to be refiled with every subsequent report. Companies can incorporate previously filed exhibits by reference, pointing to the original filing.

Redacting Confidential Information

Material contracts often contain pricing, customer names, or technical terms the company treats as trade secrets. Since 2019, the SEC has offered a streamlined process that lets companies redact this information without the formal confidential treatment request that used to be required.⁶

Under Item 601(b)(10)(iv), a company can redact specific provisions only if two conditions are met: the omitted information is not material to investors, and the company customarily and actually treats it as private or confidential.¹ Both prongs matter. A company cannot redact material pricing simply because competitors would benefit from seeing it, and it cannot redact immaterial information that it has never actually treated as confidential.

Three formatting requirements apply when the streamlined process is used:

The filing’s exhibit index must indicate that portions have been omitted.
The first page of the redacted exhibit must carry a prominent statement explaining that certain information has been excluded because it is both immaterial and the type the company treats as confidential.
Brackets must appear in the exhibit text wherever information has been removed.¹

Information that is both material and competitively sensitive falls outside this process. To protect it, a company must instead submit a traditional confidential treatment request under Rules 406 or 24b-2, filing the unredacted exhibit with the SEC along with a detailed written justification.⁶

How the SEC Reviews Redactions

The streamlined process is not a self-certification. Staff review typically begins with a letter requesting a paper copy of the unredacted exhibit with the redacted portions highlighted. The staff then evaluates whether each redaction actually meets both prongs. If nothing is amiss, the SEC sends a completion letter and closes the matter.⁷

When staff disagrees with specific redactions, it issues comments separately from any regular filing-review comments to reduce the risk of accidentally making confidential information public through the normal comment process. The SEC does not publicly release comments about redacted exhibits or the company’s responses, though it does publicly release the initial request letter and the closing letter.⁷

If the staff concludes that redacted information is actually material or otherwise does not qualify, it can require the company to amend the filing to restore that information.¹ For Securities Act registration statements, the SEC expects redaction questions to be resolved before a company can request acceleration of the effective date, which gives the staff significant practical leverage.⁷

What Happens If a Contract Is Missing or Late

A missed exhibit rarely draws an immediate enforcement action. The more common response is a comment letter during a routine filing review, asking the company to explain the omission or amend the filing to include the contract. Those letters become public, and having to explain a missing exhibit tends to sit poorly with institutional investors.

The serious consequences are usually indirect. Officers signing the certifications required under Sarbanes-Oxley Sections 302 and 906 are personally certifying that the filing is complete and accurate, exhibits included. A pattern of missing or late exhibit filings can also factor into SEC decisions on no-action relief or expedited review of future filings.

One area is more forgiving than filers often assume. A late Form 8-K filed solely under Item 1.01 does not, by itself, disqualify a company from using the short-form registration statement on Form S-3. The form’s eligibility requirements specifically carve out Item 1.01 from the timely-filing condition.⁸ The carve-out is not a license to be casual. The SEC retains broad authority under the Securities Exchange Act for reporting violations, and repeated failures can escalate to formal proceedings, injunctions, and civil penalties.⁹

1
eCFR. 17 CFR 229.601 – Item 601 Exhibits
2
Legal Information Institute. TSC Industries Inc v Northway Inc
3
U.S. Securities & Exchange Commission. Division of Corporation Finance – Current Report on Form 8-K Frequently Asked Questions
4
Securities and Exchange Commission. Form 8-K Current Report
5
eCFR. 17 CFR 229.601 – Item 601 Exhibits
6
U.S. Securities and Exchange Commission. Confidential Treatment Applications Submitted Pursuant to Rules 406 and 24b-2
7
U.S. Securities and Exchange Commission. New Rules and Procedures for Exhibits Containing Immaterial Competitively Harmful Information
8
Securities and Exchange Commission. Form S-3 Registration Statement Under the Securities Act of 1933
9
U.S. Securities and Exchange Commission. Consequences of Noncompliance