Form 8-K timing explained

The four business day rule

Form 8-K is the US current report that listed companies file with the Securities and Exchange Commission between their annual and quarterly reports. General Instruction B.1 says a report is to be filed or furnished within four business days after occurrence of the event, except where an item says otherwise ¹.

The count uses business days, not calendar days. Where the event occurs on a Saturday, Sunday or a day the SEC is closed, the instruction says the four business day period begins to run on, and include, the first business day thereafter ¹. So an event on a Saturday is treated as if the clock started on the Monday, if Monday is a business day ¹.

Which date starts the clock

For most items the trigger is the event itself. Item 1.01, for example, covers entry into a material definitive agreement not made in the ordinary course of business, and the agreement date is the event ¹.

Item 1.05 works differently. It applies when a company experiences a cybersecurity incident that it determines to be material ¹. The materiality determination must be made without unreasonable delay after discovery, and the report is due within four business days after that determination ¹. The SEC press release announcing the rule, dated 26 July 2023, describes the same timing ².

Item 1.05 allows a delay where the US Attorney General finds that immediate disclosure would pose a substantial risk to national security or public safety ^1,2. The form text sets an initial delay of up to 30 days, which can be extended under the item's terms ¹.

Dates printed on the filing

A Form 8-K carries at least two different dates. The cover page shows the Date of Report, which the form defines as the date of earliest event reported ¹. The filing date is the date EDGAR records the submission as filed ⁴. These two dates can be up to four business days apart, or more where a later amendment adds information.

When information required by Item 5.02 is not yet available at the time of the first filing, the form asks for an amendment within four business days after the information is determined or becomes available ¹. A reader building a timeline should record the event date, the original filing date and any amendment date as separate entries.

How EDGAR assigns the filing date

Rule 13 of Regulation S-T sets the filing date for electronic submissions. Filings submitted by direct transmission that start after 5:30 p.m. Eastern time are deemed filed as of the next business day ⁴.

Some forms have a later cut-off. Forms 3, 4 and 5, Form 144, Schedule 14N and Schedules 13D and 13G that start on or before 10 p.m. Eastern are treated as filed the same business day ⁴. Form 8-K is not on that list ⁴.

Regulation FD and Items 7.01 and 8.01

A company can use Item 7.01 or Item 8.01 to meet Regulation FD, the US rule on selective disclosure ¹. In that case the form says the report must meet the Regulation FD rules, including the deadline for furnishing or filing it ¹.

Regulation FD requires public disclosure simultaneously for an intentional selective disclosure, and promptly for a non-intentional one ³. Promptly means as soon as reasonably practicable, and in no event after the later of 24 hours or the start of the next day's trading on the New York Stock Exchange, counted from when a senior official learns of the disclosure ³.