Appendix E — Regulation G
The text of SEC Regulation G is reproduced
below.
Part 244 — Regulation G
244.100 — General rules
regarding disclosure of non-GAAP financial
measures.
(a) Whenever a registrant, or person acting
on its behalf, publicly discloses material information that
includes a non-GAAP financial measure, the registrant must
accompany that non-GAAP financial measure with:
(1) A presentation of the most directly
comparable financial measure calculated and presented in
accordance with Generally Accepted Accounting Principles
(GAAP); and
(2) A reconciliation (by schedule or
other clearly understandable method), which shall be
quantitative for historical non-GAAP measures presented, and
quantitative, to the extent available without unreasonable
efforts, for forward-looking information, of the differences
between the non-GAAP financial measure disclosed or released
with the most comparable financial measure or measures
calculated and presented in accordance with GAAP identified
in paragraph (a)(1) of this section.
(b) A registrant, or a person acting on its behalf, shall not
make public a non-GAAP financial measure that, taken
together with the information accompanying that measure and
any other accompanying discussion of that measure, contains
an untrue statement of a material fact or omits to state a
material fact necessary in order to make the presentation of
the non-GAAP financial measure, in light of the
circumstances under which it is presented, not
misleading.
(c) This section shall not apply to a
disclosure of a non-GAAP financial measure that is made by
or on behalf of a registrant that is a foreign private
issuer if the following conditions are satisfied:
(1) The securities of the registrant are
listed or quoted on a securities exchange or inter-dealer
quotation system outside the United States;
(2) The non-GAAP financial measure is
not derived from or based on a measure calculated and
presented in accordance with generally accepted accounting
principles in the United States; and
(3) The disclosure is made by or on
behalf of the registrant outside the United States, or is
included in a written communication that is released by or
on behalf of the registrant outside the United States.
(d) This section shall not apply to a
non-GAAP financial measure included in disclosure relating
to a proposed business combination, the entity resulting
therefrom or an entity that is a party thereto, if the
disclosure is contained in a communication that is subject
to § 230.425 of this chapter, § 240.14a-12 or §
240.14d-2(b)(2) of this chapter or § 229.1015 of this
chapter.
|
Notes to § 244.100:
|
|---|
|
1. If a non-GAAP financial
measure is made public orally, telephonically, by
Web cast, by broadcast, or by similar means, the
requirements of paragraphs (a)(1)(i) and
(a)(1)(ii) of this section will be satisfied if:
(i) The required information in those
paragraphs is provided on the registrant’s Web
site at the time the non-GAAP financial measure is
made public; and
(ii) The location of the web site is made
public in the same presentation in which the
non-GAAP financial measure is made public.
2. The provisions of paragraph
(c) of this section shall apply notwithstanding
the existence of one or more of the following circumstances:
(i) A written communication is released in
the United States as well as outside the United
States, so long as the communication is released
in the United States contemporaneously with or
after the release outside the United States and is
not otherwise targeted at persons located in the
United States;
(ii) Foreign journalists, U.S. journalists or
other third parties have access to the
information;
(iii) The information appears on one or more
web sites maintained by the registrant, so long as
the web sites, taken together, are not available
exclusively to, or targeted at, persons located in
the United States; or
(iv) Following the disclosure or release of
the information outside the United States, the
information is included in a submission by the
registrant to the Commission made under cover of a
Form 6-K.
|
244.101 —
Definitions.
This section defines certain terms as used
in Regulation G (§§ 244.100 through 244.102).
(a)
(1) Non-GAAP financial
measure. A non-GAAP financial measure is a
numerical measure of a registrant’s historical or future
financial performance, financial position or cash flows that:
(i) Excludes amounts, or is subject to adjustments
that have the effect of excluding amounts, that are
included in the most directly comparable measure
calculated and presented in accordance with GAAP in
the statement of income, balance sheet or statement
of cash flows (or equivalent statements) of the
issuer; or
(ii) Includes amounts, or is subject to adjustments
that have the effect of including amounts, that are
excluded from the most directly comparable measure
so calculated and presented.
(2) A non-GAAP
financial measure does not include operating and other
financial measures and ratios or statistical measures
calculated using exclusively one or both of:
(i) Financial measures calculated in accordance
with GAAP; and
(ii) Operating measures or other measures that are
not non-GAAP financial measures.
(3) A non-GAAP
financial measure does not include financial measures
required to be disclosed by GAAP, Commission rules, or a
system of regulation of a government or governmental
authority or self-regulatory organization that is applicable
to the registrant.
(b) GAAP. GAAP refers to
generally accepted accounting principles in the United
States, except that:
(1) In the case of
foreign private issuers whose primary financial statements
are prepared in accordance with non-U.S. generally accepted
accounting principles, GAAP refers to the principles under
which those primary financial statements are prepared;
and
(2) In the case of
foreign private issuers that include a non-GAAP financial
measure derived from a measure calculated in accordance with
U.S. generally accepted accounting principles, GAAP refers
to U.S. generally accepted accounting principles for
purposes of the application of the requirements of
Regulation G to the disclosure of that measure.
(c) Registrant. A registrant
subject to this regulation is one that has a class of
securities registered under Section 12 of the Securities
Exchange Act of 1934 (15 U.S.C. 78l), or is required to file
reports under Section 15(d) of the Securities Exchange Act
of 1934 (15 U.S.C. 78o(d)), excluding any investment company
registered under Section 8 of the Investment Company Act of
1940 (15 U.S.C. 80a-8).
(d) United States. United
States means the United States of America, its territories
and possessions, any State of the United States, and the
District of Columbia.
244.102 — No effect on
antifraud liability.
Neither the requirements of this Regulation
G (17 CFR 244.100 through 244.102) nor a person’s compliance
or non-compliance with the requirements of this Regulation
shall in itself affect any person’s liability under Section
10(b) (15 U.S.C. 78j(b)) of the Securities Exchange Act of
1934 or § 240.10b-5 of this chapter.