Form 6-K is the report of a foreign private issuer under Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934 (SEC, Form 6-K). It is not a US disclosure obligation in its own right. It carries into the US market information the issuer has already had to make public somewhere else, and it is furnished rather than filed, which changes the liability that attaches to it.
Who Has to Use It
Every foreign private issuer subject to Rule 13a-1 has to make reports on Form 6-K, and the rule names four exceptions: investment companies required to file reports under 17 CFR 270.30a-1, issuers of American depositary receipts for securities of any foreign issuer, issuers filing periodic reports on Form 10-K, Form 10-Q and Form 8-K, and asset-backed issuers (17 CFR 240.13a-16(a)).
The third exception is the important one for anyone reading two filings side by side. An issuer that reports on the domestic forms does not also report on this one, which is why Form 8-K and Form 6-K never both apply, and why the 8-K rule carries the mirror-image carve-out for issuers required to make reports on Form 6-K.
What a Foreign Private Issuer Is, and the Test Is Not One Condition
The term reaches any foreign issuer other than a foreign government, except for an issuer meeting two conditions together as of the last business day of its most recently completed second fiscal quarter (17 CFR 240.3b-4(c)).
The first condition is that more than 50 percent of the issuer’s outstanding voting securities are directly or indirectly held of record by residents of the United States (17 CFR 240.3b-4(c)).
The second condition is that any of the following is true: the majority of the executive officers or directors are United States citizens or residents, or more than 50 percent of the assets of the issuer are located in the United States, or the business of the issuer is administered principally in the United States (17 CFR 240.3b-4(c)).
Both conditions have to be met before the issuer falls out of the definition, and the second is satisfied by any one of its three limbs. A company with heavy US ownership and no US officers, assets or administration is still a foreign private issuer, and so is a US-run company whose shares are mostly held abroad.
What Triggers a Report
The trigger is publication somewhere else, not an event on a US list. An issuer furnishing a report on the form shall furnish whatever information, not required to be furnished on Form 40-F or previously furnished, that it makes or is required to make public pursuant to the law of the jurisdiction of its domicile or in which it is incorporated or organized, or files or is required to file with a stock exchange on which its securities are traded and which was made public by that exchange, or distributes or is required to distribute to its security holders (SEC, Form 6-K, General Instruction B).
The three routes are alternatives, and the obligation as a whole is expressly subject to the form’s own General Instruction D.
The information that has to travel that way is the material information about the issuer and its subsidiaries concerning changes in business, changes in management or control, acquisitions or dispositions of assets, bankruptcy or receivership, changes in the registrant’s certifying accountants, the financial condition and results of operations, material legal proceedings, changes in securities or in the security for registered securities, defaults upon senior securities, material increases or decreases in the amount outstanding of securities or indebtedness, the results of the submission of matters to a vote of security holders, transactions with directors, officers or principal security holders, the granting of options or payment of other compensation to directors or officers, material cybersecurity incident, and any other information which the registrant deems of material importance to security holders (SEC, Form 6-K, General Instruction B).
Timing Is Prompt, Measured From Publication
The report is required to be furnished promptly after the material contained in it is made public (SEC, Form 6-K, General Instruction B). The rule says the same thing with the clock started from the same place: reports shall be transmitted promptly after the information required by Form 6-K is made public by the issuer, by the country of its domicile or under the laws of which it was incorporated or organized, or by a foreign securities exchange with which the issuer has filed the information (17 CFR 240.13a-16(b)).
Both the form and the rule say promptly, and both start the clock at the foreign publication rather than at a US event.
Furnished, Not Filed
This is the distinction the form is best known for, and both the form and the rule state it in the same words.
The information and documents furnished in the report shall not be deemed to be filed for the purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section (SEC, Form 6-K, General Instruction B), and reports furnished pursuant to the rule shall not be deemed to be filed for the purpose of section 18 of the Act or otherwise subject to the liabilities of that section (17 CFR 240.13a-16(c)).
The exclusion is specific about its reach. It names Section 18 of the Exchange Act and the liabilities of that section, and it says nothing about any other provision.
One consequence is mechanical. If a report furnished on the form incorporates by reference any information not previously filed with the Commission, that information must be attached as an exhibit and furnished with the form (SEC, Form 6-K, General Instruction B).
What the Report Consists Of
The Form 6-K report shall consist of a cover page, the report or document furnished by the issuer, and a signature page, and the issuer must submit it in electronic format through EDGAR in accordance with Regulation S-T, with signatures provided under Regulation S-T Rule 302 (SEC, Form 6-K, General Instruction C). The cover page itself asks the issuer to indicate by check mark whether it files or will file annual reports under cover of Form 20-F or Form 40-F, so the annual route is declared on the face of the form.
Translation is handled with a concession rather than a full requirement. An issuer may furnish under cover of Form 6-K an English summary instead of a full English translation of a report required to be furnished and made public under the laws of its home country or the rules of its home country stock exchange, as long as it is not a press release and is not required to be and has not been distributed to the issuer’s security holders (SEC, Form 6-K, General Instruction D).
What Form 6-K Is Not
- A current report on Form 8-K. Different filer population, and the two rules exclude each other. The event-driven US regime is set out in Form 8-K.
- A quarterly report. A foreign private issuer reporting this way is outside the 10-Q requirement, which excludes foreign private issuers reporting under Rule 13a-16 by name.
- An annual report. The cover page points at Form 20-F or Form 40-F for that.
- A filed document. Furnished, and expressly outside Section 18.
Common Questions
Furnished. Both the form and Rule 13a-16 say the information shall not be deemed to be filed for the purpose of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section.
Promptly after the material in it has been made public, whether that publication happened because the issuer made it, because home country law required it, or because a foreign exchange the issuer filed it with published it. The deadline tracks the foreign publication rather than a US calendar.
A full translation is not always required. The form allows an English summary in place of a full English translation for a home country report, provided the document is not a press release and has not been and is not required to be distributed to security holders.
Whatever the issuer had to make public at home, where it is material and falls into the form’s own list, which runs from changes in business and changes in management or control through to a material cybersecurity incident and anything else the registrant deems of material importance to security holders.
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