The SEC recently adopted a rule to require that earnings releases or similar announcements containing financial information for completed fiscal periods be furnished to the SEC by filing an 8-K. The new rule applies to earnings releases and similar announcements made after March 28, 2003.

The new rule amends Form 8-K to add new Item 12 "Disclosure of Results of Operations and Financial Condition." New Item 12 requires a company to furnish a Form 8-K within five business days of any public announcement or release disclosing material non-public information regarding a registrant's results of operations or financial condition for an annual or quarterly fiscal period that has ended.

Item 12 requires the registrant to briefly describe the announcement or release and also to furnish the announcement or release as an exhibit to the Form 8-K. In addition, Item 12 requires that earnings releases or similar disclosures be furnished to the SEC rather than filed.

Item 12 also requires registrants who include non-GAAP financial measures in their earnings release to provide the same information as if the non-GAAP number were used in a filing. Specifically, if the press release includes a non-GAAP number, the registrant must also include the following:

• a presentation, with equal or greater prominence, of the most directly comparable financial measure calculated and presented in accordance with GAAP;
• a reconciliation (by schedule or other clearly understandable method) of the differences between the non-GAAP financial measure disclosed or released with the most directly comparable financial measure or measures calculated and presented in accordance with GAAP;
• the reasons why the registrant's management believes that presentation of the non-GAAP financial measure provides useful information to investors regarding the registrant's financial condition and results of operations; and
• to the extent material, the additional purposes, if any, for which the registrant's management uses the non-GAAP financial measure that are not otherwise disclosed.

The rule does not require any registrant to issue an earnings release or similar announcement. However, if a registrant issues such a release or announcement containing material non-public information regarding the registrant's results of operations or financial condition for an annual or quarterly fiscal period that has ended, it would trigger the new requirement under Item 12.

Item 12 requires a registrant to file the Form 8-K within five business days after the earnings release or similar disclosure. The SEC has reserved the right to shorten this deadline to two days after it has reviewed the other 8-K filing deadlines.

The furnishing requirement under Item 12 of Form 8-K is triggered by the disclosure of material non-public information regarding a completed fiscal year or quarter. Repetition or re-release of previously publicly disclosed information or release of the same information in a different form would not trigger the Item 12 requirement. However, release of additional or updated material non-public information regarding the registrant's results of operation or financial condition for a completed fiscal year or quarter triggers an additional furnishing requirement under Item 12.

Item 12 of Form 8-K applies only to publicly disclosed or released material non-public information concerning an annual or quarterly fiscal period that has ended. While such disclosure may also include forward-looking information, it is the material information about the completed fiscal period that triggers Item 12. Accordingly, Item 12 does not apply to public disclosure of earnings estimates for future or ongoing fiscal periods, unless those estimates are included in the public announcement or release of material non-public information regarding an annual or quarterly fiscal period that has already ended. However, registrants should note that such disclosure of earnings estimates may trigger a Regulation FD obligation even if Item 12 of Form 8-K does not apply.

The foregoing is meant to be a summary only. As with any discussion of the law, certain exceptions may apply to specific situations. Please call Ted Tashlik or Martin Goldwyn to discuss any specific matters.