Form 8-K is the current report a registrant files when one of the events the form specifies actually happens, rather than on a fixed calendar. A registrant here is an entity that has to report to the US Securities and Exchange Commission under the Securities Exchange Act. Except as paragraph (b) of section 240.13a-11 provides, every registrant subject to section 240.13a-1 must file one within the period the form specifies, unless substantially the same information has already been reported by the registrant (eCFR, section 240.13a-11(a)), and the same duty, carrying the same carve-out in its own paragraph (b), falls on every registrant subject to section 240.15d-1 (eCFR, section 240.15d-11(a)). Unless the form says otherwise, the report is due within four business days after the event occurs (SEC, Form 8-K, General Instruction B.1).
Who Owes the Report, and Who Is Excluded
The duty tracks registration rather than size or profitability, and the exclusions are short. Section 240.13a-11 does not apply to foreign governments, to foreign private issuers required to make reports on Form 6-K under section 240.13a-16, to issuers of American Depositary Receipts for the securities of any foreign issuer, or to investment companies required to file reports under section 270.30a-1, except where such an investment company must file notice of a blackout period under section 245.104 (eCFR, section 240.13a-11(b)). The other reporting route carries the same list with section 240.15d-16 standing in for section 240.13a-16 (eCFR, section 240.15d-11(b)). The form names both routes on its own cover, as the current report under Section 13 or 15(d) of the Securities Exchange Act of 1934 (SEC, Form 8-K).
The Four Business Day Clock
A report on this form is required to be filed or furnished, as applicable, on the occurrence of any one or more of the events specified in the items in Sections 1 to 6 and 9, and unless otherwise specified it is due within four business days after the event. If the event occurs on a Saturday, Sunday or a holiday on which the Commission is not open for business, the four business day period begins to run on, and includes, the first business day after that (SEC, Form 8-K, General Instruction B.1).
Two items in that same instruction run from a decision rather than from the event. A report under Item 5.08 is due within four business days after the registrant determines the anticipated meeting date, and a report under Item 1.05 is due within four business days after the registrant determines that it has experienced a material cybersecurity incident. That determination must be made without unreasonable delay after discovery of the incident (SEC, Form 8-K, General Instruction B.1 and Instruction 1 to Item 1.05). Whether an incident is material runs on the securities-law standard rather than any percentage: information is material if there is a substantial likelihood that a reasonable shareholder would consider it important in making an investment decision, or if it would have significantly altered the total mix of information made available (SEC, Release No. 33-11216, Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure). That is a different test from the financial-reporting threshold set out in materiality.
Sections 1 Through 9, and the Items Inside Them
The form groups its items into nine numbered sections: Section 1, registrant’s business and operations; Section 2, financial information; Section 3, securities and trading markets; Section 4, matters related to accountants and financial statements; Section 5, corporate governance and management; Section 6, asset-backed securities; Section 7, Regulation FD; Section 8, other events; and Section 9, financial statements and exhibits (SEC, Form 8-K). Two of those sit outside the mandatory trigger. Item 7.01 carries only information the registrant elects to disclose through Form 8-K under Regulation FD, and Item 8.01 is optional, for events the form does not otherwise call for that the registrant deems of importance to security holders. Where either one is used solely to satisfy Regulation FD, the timing follows Rule 100(a) of that regulation rather than the general period (SEC, Form 8-K, General Instruction B.1, Item 7.01 and Item 8.01).
Item 1.01, entry into a material definitive agreement, reaches an agreement not made in the ordinary course of the registrant’s business, or any amendment of such an agreement that is material to the registrant, and asks for the date, the parties, any material relationship between them and the registrant, and a brief description of the material terms (SEC, Form 8-K, Item 1.01).
Item 2.02, results of operations and financial condition, is triggered when the registrant, or any person acting on its behalf, makes a public announcement or release disclosing material non-public information about the registrant’s results of operations or financial condition for a completed quarterly or annual fiscal period. The registrant discloses the date of the release, briefly identifies it, and includes its text as an exhibit. The item does not apply to a disclosure made in a quarterly report on Form 10-Q or an annual report on Form 10-K (SEC, Form 8-K, Item 2.02 and Instruction 4 to Item 2.02). An earnings release carrying a non-GAAP measure brings the reconciliation duty with it, because paragraph (e)(1)(i) of Item 10 of Regulation S-K applies to disclosures under this item (SEC, Form 8-K, Instruction 2 to Item 2.02), and that machinery is set out in EBITDA.
Item 4.02, non-reliance on previously issued financial statements or a related audit report or completed interim review, applies when the board, a board committee, or the officers authorized to act if board action is not required, concludes that previously issued financial statements should no longer be relied upon because of an error as FASB ASC Topic 250 addresses it. The disclosure names the date of the conclusion, identifies the statements and periods affected, describes the facts underlying the conclusion so far as they are known at the time of filing, and states whether the audit committee or the board discussed the matter with the independent accountant (SEC, Form 8-K, Item 4.02(a)).
Item 5.02, departure of directors or certain officers, election of directors, appointment of certain officers, and compensatory arrangements of certain officers, splits by case. A director who resigns or refuses to stand for re-election since the date of the last annual meeting of shareholders because of a disagreement with the registrant known to an executive officer, or who is removed for cause, brings paragraph (a) into play, which asks for the date, any positions the director held on any board committee at the time, and a brief description of the circumstances representing the disagreement the registrant believes caused the departure (SEC, Form 8-K, Item 5.02(a)(1)). A principal executive officer, president, principal financial officer, principal accounting officer, principal operating officer, a person performing similar functions, or any named executive officer who retires, resigns or is terminated brings paragraph (b), which asks only for the fact that it happened and the date (SEC, Form 8-K, Item 5.02(b)).
Filed Versus Furnished
Not everything carried on a Form 8-K sits at the same level of liability. Information in a report furnished under Item 2.02 or Item 7.01 is not deemed to be filed for purposes of Section 18 of the Exchange Act, and is not otherwise subject to the liabilities of that section, unless the registrant specifically states that the information is to be considered filed or incorporates it by reference into a filing under the Securities Act or the Exchange Act. Where a report contains disclosure under either item, all exhibits relating to it are deemed furnished and not filed, unless the registrant specifies under Item 9.01 which exhibits, or portions of them, are intended to be filed instead (SEC, Form 8-K, General Instruction B.2).
Section 18 is why that distinction is worth the ink. A person who makes, or causes to be made, a statement in a report filed under the Act that was false or misleading with respect to a material fact is liable to any person who did not know that, and who in reliance on the statement bought or sold a security at a price the statement affected, for the damages that reliance caused, unless the person sued proves that he acted in good faith and had no knowledge that the statement was false or misleading (15 U.S.C. 78r, Liability for misleading statements). Furnishing an earnings release rather than filing it keeps the release outside those liabilities unless the registrant chooses otherwise.
The Safe Harbor, and the Two Lists That Do Not Match
A missed current report is not automatically fraud. No failure to file a report on Form 8-K that is required solely under Item 1.01, 1.02, 1.05, 2.03, 2.04, 2.05, 2.06, 4.02(a), 5.02(e) or 6.03 is deemed to be a violation of 15 U.S.C. 78j(b) and Rule 10b-5 (eCFR, section 240.13a-11(c)), and the other reporting route carries the identical list (eCFR, section 240.15d-11(c)).
Eligibility to register securities on Form S-3 runs off a similar list that is not the same one. A registrant must have filed in a timely manner all reports required during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement, other than a report required solely under Item 1.01, 1.02, 1.04, 1.05, 2.03, 2.04, 2.05, 2.06, 4.02(a) or 5.02(e) of Form 8-K (SEC, Form S-3, General Instruction I.A.3(b)). Set the two side by side and they differ in both directions. Item 6.03 sits inside the safe harbor at eCFR, section 240.13a-11(c) but not inside the Form S-3 carve-out, so a failure to report under it is not deemed a violation of those two provisions yet still counts against the timely filing condition. Item 1.04 is the mirror case, carved out of the Form S-3 condition and absent from the safe harbor.
Form 8-K Compared With Form 10-Q and Form 10-K
The confusion readers usually arrive with is a calendar one. Form 10-Q and Form 10-K are periodic reports, due on the issuer’s own fiscal calendar whether or not anything notable happened, and what each of them holds is worked through in Form 10-Q. Form 8-K has no calendar. It is a current report under Section 13 or 15(d) of the Securities Exchange Act of 1934, filed because a specified event occurred (SEC, Form 8-K), so a registrant may file several in one month and none the next. The two systems meet at a seam, because a 10-Q’s Part II picks up matter that should have been disclosed on a Form 8-K during the period and was not (SEC, Form 10-Q, Part II, Item 5(a)).
What Is a Form 8-K Material Agreement?
It is a defined term rather than a judgment call about size. For Item 1.01 purposes, a material definitive agreement means an agreement that provides for obligations that are material to and enforceable against the registrant, or rights that are material to the registrant and enforceable by the registrant against one or more other parties to the agreement, in each case whether or not subject to conditions. An agreement is deemed to be outside the ordinary course even where it is the kind that ordinarily accompanies the registrant’s business, if it involves the subject matter identified in Item 601(b)(10)(ii)(A) through (D) of Regulation S-K, though an agreement involving the subject matter identified in Item 601(b)(10)(iii)(A) or (B) need not be disclosed under this item (SEC, Form 8-K, Item 1.01 and Instruction 1 to Item 1.01).
Where a CPA Firm Meets Form 8-K
The duty binds the registrant and not its accountants, so a firm meets this form through a client rather than through anything it files itself. The place it lands inside the timetable is Item 4.02(b). Where a registrant is advised by, or receives notice from, its independent accountant that disclosure should be made or action taken to prevent future reliance on a previously issued audit report or completed interim review, the registrant must give the accountant a copy of the disclosures no later than the day they are filed with the Commission, request a letter addressed to the Commission stating whether the accountant agrees with what the registrant said and, if not, in what respects it does not, and amend the filed Form 8-K to include that letter no later than two business days after receiving it (SEC, Form 8-K, Item 4.02(b) and (c)).
The other honest contact point is diligence rather than compliance. A client or prospect that is an SEC registrant leaves its auditor changes under Item 4.01, its non-reliance conclusions under Item 4.02 and its officer departures under Item 5.02 on the public record (SEC, Form 8-K), so a firm weighing that engagement can read the history before it agrees to anything.
Accountably places trained offshore accountants and tax preparers inside US CPA and EA firms on accounting and tax work rather than audit or SEC reporting engagements, and a firm can grade that work on its own files through a trial task.
