Form 8-K: Everything You Need to KnowStartup Law ResourcesVenture Capital, Financing
Form 8-K is used to report material events affecting a company subject to SEC oversight. 4 min read
2. Why Is Form 8-K Important?
3. Use Form 8-K If:
4. Do Not Use Form 8-K If:
5. Deadlines for Form 8-K
6. Examples of What Happens When You Use Form 8-K vs. When You Don't Use Form 8-K
7. Common Mistakes With Form 8-K
8. Frequently Asked Questions
9. Steps to File Form 8-K
10. Find a Securities Lawyer
If your company sells securities, you have a duty to keep investors informed. Often, this is done through your quarterly and annual reports. Other events may need to be reported on Form 8-K.
What Is Form 8-K?
The form's official title is "Form 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934." It is used to report material events affecting a company subject to SEC oversight.
An event is material when it could affect a reasonable shareholder's investment decision. This includes:
Acquisition of or by another company.
Changes to the board of directors.
Changing the fiscal year.
Why Is Form 8-K Important?
Companies must give shareholders enough information to allow them to make informed investment decisions.
Form 8-K is used to give shareholders timely notice of unscheduled events that occur between your regular quarterly (10-Q) and annual (10-K) reports. Failing to file Form 8-K may result in SEC regulatory action including heavy fines.
Use Form 8-K If:
Form 8-K has nine broad sections covering different types of material events. If an event is covered by these sections, you need to file Form 8-K.
Starting or ending business operations, including bankruptcy.
Major financial transactions that are too important to wait until the next quarterly report
Changes in market listing status, unregistered sales of securities or changes to the rights of security holders.
Changes in auditors or notice that previous financial statements can't be relied upon.
Restructuring of the corporate governance and management structure.
Certain transactions involving asset-backed securities.
Disclosures required under Regulation FD.
Any other events considered material.
Financial statement or exhibit updates as a result of material events.
Do Not Use Form 8-K If:
You are making a regularly scheduled quarterly or annual report. Use Form 10-Q or Form 10-K.
You are not subject to SEC reporting requirements.
CAUTION: SEC reporting requirements don't only cover companies on major stock exchanges. Ask your attorney if they apply to you.
Deadlines for Form 8-K
The deadline to file is generally within four business days of most events.
An auditor's restatement letter must be reported within two business days.
A Form 8-K announcing the appointment of new officers may be delayed until a public announcement such as a press conference.
The financial statements of an acquired business must be filed within 71 calendar days of the initial Form 8-K announcing the transaction.
Check the instructions for Form 8-K for any other specific deadlines that may apply.
CAUTION: Releasing information before Form 8-K is filed could potentially violate insider trading laws. This includes both intentional and unintentional releases of nonpublic information. In these cases, Regulation FD may accelerate the usual Form 8-K filing deadline to as early as the day following the disclosure.
Examples of What Happens When You Use Form 8-K vs. When You Don't Use Form 8-K
Form 8-K Filed on Time: You should avoid regulatory action. If the news was negative, share prices may fall, but should rebound with future improvements.
Form 8-K Filed Late, Investor Reactions: Investor reactions are likely to be neutral or negative. Late filing could be seen as a sign of poor management or intentionally hiding information. Investors may pull out or become wary of making additional investments.
Form 8-K Filed Late, SEC Action: Late filing will likely result in administrative action. The severity of the penalties depend on the reason for filing late and when the report was eventually filed. Fines are typical. For severe cases, a company's Exchange Act registration may be revoked.
Form 8-K Filed Late, Stock Exchange Action: NYSE and NASDAQ require late filers to issue a press release announcing their failure to issue a timely report. This could harm your share price or reputation. Egregious or repeated violations may result in delisting.
Form 8-K Not Filed: If Form 8-K is not filed, it will be viewed similarly to a late filing. The penalties will likely be higher. Penalties may be mitigated if an event's materiality is arguable.
Common Mistakes With Form 8-K
Failing to recognize that a Form 8-K is required.
Not including enough information.
Prematurely releasing information before a public announcement is made.
Frequently Asked Questions
- How do I know if I'm subject to SEC reporting requirements?
Generally, any public solicitation of investments triggers reporting requirements. Ask your lawyer before soliciting investments.
- Are there state law requirements?
Your state may impose additional requirements or regulate businesses that don't fall under SEC jurisdiction. State law cannot override SEC requirements.
- Can a press release replace Form 8-K?
You may not issue a press release in place of filing Form 8-K. You may use a press release to provide additional information to investors.
Steps to File Form 8-K
Determine whether information is material and whether a Form 8-K is required. Err on the side of disclosure.
Determine the filing deadline. Remember in some cases it may be less than four business days.
Gather the information required by the appropriate section of Form 8-K.
If you are publicly traded, check whether your stock exchange has additional requirements.
Verify with your attorney that you are making a complete and accurate disclosure as required by law.
Use the SEC EDGAR system to submit the required documents.
Find a Securities Lawyer
You have a duty to follow all securities laws regardless of your knowledge or experience. The penalties for not following Form 8-K's complex requirements are high.
To get help meeting your reporting obligations, search for a securities lawyer on UpCounsel. UpCounsel screens for the top lawyers near you so that you can quickly find a lawyer who can help you meet your deadline.