Guide

Form 8-K Item 2.02, results of operations and financial condition

Item 2.02 of Form 8-K is the item a public company uses when it publicly announces material nonpublic information about the results of a quarter or fiscal year that has already ended, such as an earnings release. The 8-K names the release and the day it went out, and carries the whole release as an exhibit.

What triggers Item 2.02

Item 2.02(a) is triggered by an announcement. It applies when the company, or anyone acting for it, releases material nonpublic information about results of operations or financial condition for a completed quarterly or annual period. If the company later puts out new or updated information about that same completed period, Instruction 1 says that triggers another Item 2.02 report.

The SEC added this requirement in January 2003, as Item 12 of Form 8-K, in the same rule that created Regulation G for non-GAAP measures. That rule gave companies five business days. In the 2004 reorganization of the form, the requirement became Item 2.02 with its substance unchanged, and the general deadline for most items moved to four business days after the event, which for this item is the announcement.

Item 2.02(b) spares the company a second 8-K for an earnings call or webcast, provided the call takes place within 48 hours after a related written release furnished under Item 2.02, is open to the public, is announced in advance by a widely disseminated press release that says how to join, and has its financial and statistical information posted on the company's website.

Furnished status and Section 18

General Instruction B.2 says information furnished under Item 2.02 is not deemed filed for purposes of Section 18 of the Exchange Act, unless the company says it is filed or incorporates it by reference into another filing. Section 18 is a liability provision, so the label affects the company's legal exposure for that text. The release still appears on EDGAR with the rest of the 8-K.

The same instruction covers the exhibits. When an 8-K reports under Item 2.02 or Item 7.01, every exhibit relating to those items is treated as furnished unless the company says under Item 9.01 which exhibits, or parts of them, it intends to be filed instead.

How Item 2.02 relates to Items 9.01 and 7.01

Item 2.02 requires the text of the release as an exhibit, and Item 9.01 is the item under which a company lists the exhibits to an 8-K, so the two appear together on an earnings report. Item 9.01 by itself lists financial statements and exhibits rather than reporting an event of its own.

Item 7.01 is the Regulation FD item, used when a company chooses to make information public through Form 8-K under that rule. A company may furnish other material under Item 7.01 in the same report as its Item 2.02 release. The SEC's investor bulletin on reading an 8-K mentions dividend announcements and quarterly sales figures among the topics it has seen under Item 7.01.

Reading the attached release

If the release uses non-GAAP figures, such as adjusted earnings, look for the reconciliation. Regulation G, adopted in the 2003 rule, requires a company that releases a non-GAAP measure to present the most directly comparable GAAP measure and a reconciliation between the two. Instruction 2 to Item 2.02 adds the requirements of Item 10(e)(1)(i) of Regulation S-K. The 2003 rule explains that this brings the filing rules to earnings releases, so the release also has to show the GAAP measure with equal or greater prominence and state why management believes the non-GAAP measure is useful to investors.

The full statements come with the 10-Q or 10-K

The SEC's investor bulletin describes the financial figures in an earnings release as a summary of the full financial statements, which appear later in the company's quarterly report on Form 10-Q or annual report on Form 10-K. When results are first disclosed in that periodic report itself, Instruction 4 says Item 2.02 does not apply, so there may be no earnings 8-K for that period at all.

In a Filing Ahoy 8-K alert, a report with Item 2.02 is described as reporting results of operations and financial condition, while one that has only Items 7.01 and 9.01 is marked as Regulation FD disclosure only. Neither alert gives the figures, which are in the release attached as an exhibit.

Not financial or investment advice. Filing Ahoy reports what was filed; it does not tell you what to buy or sell. Filing Ahoy is not affiliated with the SEC.