Morrison & Foerster : Legal Updates & News : Legal Updates : Unusual EDGAR Procedures for "Furnishing" New Item 12 of Form 8-K

Any of the attorneys in our Corporate Department are available to answer your questions concerning the new EDGAR filing requirements.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situituations.

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Unusual EDGAR Procedures for "Furnishing" New Item 12 of Form 8-K

April 2003

New Item 12 of Form 8-K

As most are now aware, on March 28, 2003, new Item 12 of Form 8-K, "Results of Operations and Financial Condition," became effective. New Item 12 requires that press releases containing material non-public financial information regarding completed quarterly or annual periods, such as the typical quarterly earnings press release, be "furnished" to the SEC under cover of Form 8-K within five business days of the date of the press release, although we strongly recommend that the Form 8-K be filed before the earnings conference call for the reasons stated in our client alert on this issue. [fn1]

Recent SEC Guidance Related to Filing of Form 8-K Item 12

In a release dated March 27, 2003 (Release No. 33-8216), the SEC provided interim guidance regarding the filing of information pursuant to new Item 12 of Form 8-K. Because the necessary programming to add Item 12 (and also Item 11, relating to required public notice of a pension fund blackout period) to the EDGAR system has not yet been completed by the SEC, the SEC, at least temporarily, is requiring registrants to furnish the information required by Item 12 under "Item 9. Regulation FD Disclosure" of Form 8-K. In addition, the SEC states that the "caption" in the Form 8-K should indicate that information is being provided under Item 12.

Sample Disclosure

Sample disclosure for an Item 12 of Form 8-K under the SEC's interim guidance could consist of the following: [fn2]

Item 9. Regulation FD Disclosure (the following discussion is furnished under "Item 12. Results of Operations and Financial Condition")
In accordance with SEC Release No. 33-8216, the following information, required to be furnished under "Item 12. Results of Operations and Financial Condition," is furnished under "Item 9. Regulation FD Disclosure."

On [date], [name of Company] (the "Company") announced via press release the Company's preliminary results for its [first/second/third/fourth] quarter ended [date]. A copy of the Company's press release is attached hereto as Exhibit 99.1. This Form 8-K and the attached exhibit are provided under Item 12 of Form 8-K and are furnished to, but not filed with, the Securities and Exchange Commission.

Footnotes

1: For further details regarding new Item 12, please see our update, New Item 12 of Form 8-K - A Timing Trap for the Unwary, March 2003.

2: This client alert is intended to provide general legal information and does not render legal advice or legal opinions. Such advice may only be given when related to actual fact situations.