Chapter 6 — Press Releases
Form 8-K, Item 2.02, requires registrants to furnish to the SEC a Form 8-K
within four business days of any public release or announcement (often a press
release) disclosing material nonpublic information regarding a registrant’s results
of operations or financial condition for an annual or quarterly fiscal period that
has ended. In such circumstances, a Form 8-K is required whether or not the press
release includes disclosure of a non-GAAP financial measure. Question 106.07 in the
C&DIs on Exchange Act Form
8-K indicates that a registrant must comply with all the requirements
of Item 2.02 when it reports “preliminary” earnings and results of operations for a
completed quarterly period. Note that a separate Form 8-K may also be required for
nonpublic information that is disclosed orally, telephonically, or by webcast,
broadcast, or similar means, unless certain conditions are met.1
The information a registrant provides under Item 2.02 is considered furnished to the SEC, not filed, and therefore is not subject to the requirements in Exchange Act Section 18 on liability for misleading statements. If a registrant specifically states in Form 8-K that the information is to be considered “filed,” or incorporates it by reference into a registration statement, proxy statement, or other report, it will be considered filed and therefore subject to Section 18. The concept of furnishing, rather than filing, information is also common in Regulation FD disclosures made under Form 8-K, Item 7.01.
When a press release that is furnished to the SEC (“furnished press release”)
includes a non-GAAP liquidity or performance measure, registrants are required to
comply with the presentation and disclosure requirements of Regulation G and
Regulation S-K, Item 10(e)(1)(i). Although Regulation G and Item 2.02 do not refer
to the specific prohibitions in Item 10(e)(1)(ii), registrants should consider the
concepts in these and other prohibitions when using non-GAAP measures. For example,
the title used for a non-GAAP financial measure in a Form 8-K should not be the same
as, or confusingly similar to, titles or descriptions used for GAAP financial
measures.
Registrants may satisfy the disclosure requirements by including the information directly in the Form 8-K containing the furnished press release or as an exhibit to the Form 8-K. Alternatively, registrants may include the disclosures in their most recent annual report filed with the SEC (or a more recent filing) and should update the disclosures, as necessary, before the date the Form 8-K is furnished to the SEC. If a registrant elects to “file” the press release with the SEC, all the provisions in Item 10(e) apply.
Footnote 11 of the Release indicates that regardless of whether the press release is furnished to or filed with the SEC, the prohibition against the presentation of cash flow per-share data and other per-share measures of liquidity applies. The guidance in the footnote prohibits the disclosure of cash flow data on a per-share basis in both materials filed with or furnished to the SEC, including press releases, since such disclosures are prohibited by GAAP and SEC rules. See Section 4.4 for more information about non-GAAP per-share measures.
See Section 3.1 for a
summary of the disclosures required by Regulation G, Items 10 and 2.02, about
non-GAAP information “furnished” or “filed” by a registrant.
Footnotes
1
See Form 8-K, Item 2.02(b).