[Federal Register Volume 68, Number 63 (Wednesday, April 2, 2003)]
[Rules and Regulations]
[Pages 15939-15940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7841]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 228, 229, 244 and 249

[Release Nos. 33-8216; 34-47583; IC-25983; FR-69; File Nos. S7-43-02 
and S7-44-02]
RIN 3235-AI69 and 3235-AI71


Filing Guidance Related to: Conditions for Use of Non-GAAP 
Financial Measures; and Insider Trades During Pension Fund Blackout 
Periods

AGENCY: Securities and Exchange Commission.

ACTION: Final rule; interim guidance regarding Form 8-K Item 11 and 
Item 12 filing requirements.

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SUMMARY: The Securities and Exchange Commission is issuing interim 
guidance regarding the filing of information pursuant to new Items 11 
and 12 of Form 8-K. Item 11 requires a registrant to provide public 
notice of a pension fund blackout period. Final rules related to this 
disclosure item were published in the Federal Register on January 28, 
2003 (68 FR 4337). Item 12 requires a registrant to furnish specified 
disclosure when the registrant, or any person acting on its behalf, 
makes any public announcement or release disclosing material non-public 
information regarding the registrant's results of operations or 
financial condition for a competed quarterly or annual fiscal period. 
Final rules related to this disclosure item were published in the 
Federal Register on January 30, 2003 (68 FR 4819).

EFFECTIVE DATE: March 28, 2003.

FOR FURTHER INFORMATION CONTACT: Andrew Thorpe, Special Counsel, with 
respect to the Form 8-K Item 11 information, or Joseph Babits, Special 
Counsel, with respect to the Form 8-K Item 12 information, at (202) 
942-2910, Division of Corporation Finance, U.S. Securities and Exchange 
Commission, 450 Fifth Street, NW., Washington, DC 20549-0402.

SUPPLEMENTARY INFORMATION: On January 22, 2003, the Commission issued 
two separate adopting releases. One of the releases contained final 
rules to clarify the application and prevent evasion of section 306(a) 
of the Sarbanes-Oxley Act of 2002.\1\ Section 306(a) prohibits any 
director or executive officer of an issuer of any equity security from, 
directly or indirectly, purchasing, selling or otherwise acquiring or 
transferring any equity security of the issuer during a pension plan 
blackout period that temporarily prevents plan participants or 
beneficiaries from engaging in equity securities through their plan 
accounts, if the director or executive officer acquired the equity 
security in connection with his or her service or employment as a 
director or executive officer. Among other things, the Commission 
created new Item 11 of Form 8-K, which requires a registrant to provide 
public notice of a pension fund blackout period. The Item 11 disclosure 
requirement is effective on March 31, 2003. The Commission deferred 
effectiveness until March 31 to allow time for Commission staff to 
program the addition of Item 11 to the Electronic Data Gathering, 
Analysis and Retrieval (``EDGAR'') system. In recognition of the fact 
that section 306(a) of the Sarbanes-Oxley Act of 2002, including the 
notice requirement, became effective on January 26, 2003, the release 
stated that between January 26 and March 31, 2003, a registrant could 
provide the required notice to the Commission by disclosing the 
information described in Item 11 under Item 5 (``Other Information'') 
of Form 10-Q or 10-QSB, in the first quarterly period filed by the 
registrant after commencement of the blackout period.
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    \1\ Release No. 34-47225 (January 22, 2003) [68 FR 4337].
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    The other release contained final rules and amendments to address 
public companies' disclosure or release of certain financial 
information that is calculated and presented on the basis of 
methodologies other than in accordance with generally accepted 
accounting principles.\2\ Among other things, the Commission created 
new Item 12 of Form 8-K, that requires a registrant to furnish 
specified disclosure when the registrant, or any person acting on its 
behalf, makes any public announcement or release disclosing material 
non-public information regarding the registrant's results of operations 
or financial condition for a competed quarterly or annual fiscal 
period. The Item 12 disclosure requirement applies to earnings releases 
and similar announcements made after March 28, 2003.
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    \2\ Release No. 33-8176 (January 22, 2003) [68 FR 4819].
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    Because the necessary programming to add Items 11 and 12 of Form 8-
K to the EDGAR system is not yet complete, we are providing the 
following interim guidance regarding the filing requirement for these 
Items.
    [sbull] Registrants should continue to disclose the information 
required by Item 11 under Item 5 (``Other Information'') of Form 10-Q 
or 10-QSB in the first quarterly report filed by the registrant after 
commencement of the blackout period.
    [sbull] Registrants should furnish the information required by Item 
12 under Item 9 (``Regulation FD Disclosure'') of Form 8-K.
    [sbull] The text of Item 5 of the Form 10-Q that provides 
information required under Item 11 should indicate that information is 
being provided under Item 11.
    [sbull] The caption in the Form 8-K that provides information 
required under Item 12 should indicate that information is being 
provided under Item 12, or under Items 9 and 12, as the case may be.
    This procedural guidance does not affect the legal obligations or 
consequences of providing the information under these items. For 
example, the information in a Form 8-K report furnished pursuant to 
Item 9 is not deemed to be ``filed'' for the purposes of Section 18 of 
the Securities Exchange Act of 1934 or otherwise subject to the 
liabilities of that section, except if the registrant specifically 
states that the information is to be considered ``filed'' under the 
Exchange Act or incorporates it by reference into a filing under the 
Securities Act of 1933 or the Exchange Act. As provided in the final 
rules, a registrant must furnish the information that is required by 
Item 12 under Item 9 of Form 8-K within five business days after the 
occurrence of an event specified in Item 12. Information provided under 
Item 12 also may be required to be provided under the requirements of 
Regulation FD; in this case, any earlier deadline for Item 9 under 
Regulation FD would apply.
    This interim guidance will remain in effect until we announce that 
our EDGAR system permits registrants to file or furnish information 
using the

[[Page 15940]]

Item 11 and 12 designations. We will issue a statement and post it on 
the Commission's Web site to announce this date as soon as it becomes 
known.

    By the Commission.

    Dated: March 27, 2003.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-7841 Filed 4-1-03; 8:45 am]
BILLING CODE 8010-01-P