When disclosing information in a filing with the SEC, it is important to know whether such disclosure and any related exhibits should be "filed" or "furnished." To non-lawyers, this may seem like semantics or another technical difference among lawyers, but there is a distinct and important difference, which is oftentimes the cause behind the questions we receive from in-house counsel.
Liability. As you may know, the Exchange Act imposes liability for material misstatements or omissions contained in reports and other information “filed” with the SEC. However, if such report or information is permitted to be, and is in fact, "furnished" rather than "filed" with the SEC, it is excluded from certain of these liability provisions under the Exchange Act. But don’t stop reading just yet. Other liability protections under the Exchange Act (for example, Section 10(b)) may still apply even to "furnished" reports and information.
Incorporation by Reference. Fortunately, the SEC permits public companies to incorporate by reference into their filings certain documents and information that were previously "filed" with the SEC. This means that companies may make a reference in a current filing to documents and information previously on file with the SEC rather than repeating the same information or attaching the same exhibits over and over in various filings (we can all agree that legal documents are long enough already). In fact, some of this information, including information that may be "filed" at some point in the future, is automatically incorporated by reference into a company’s registration statement. However, information that is "furnished" rather than "filed" is not automatically incorporated by reference and is therefore not subject to the same level of liability under the Securities Act as other information in the registration statement.
Furnished v. Filed. The two protagonists in this romance story are Item 2.02 (Results of Operations) and Item 7.01 (Regulation FD Disclosure) of Form 8-K. Disclosures made under these two items are "furnished" rather than "filed" with the SEC and are therefore not automatically incorporated by reference into a company’s registration statement. When filing exhibits relating to disclosures made under Items 2.02 or 7.01 (or certain certifications required by Exchange Act periodic reports), it is important to specify that these exhibits are being "furnished" rather than “filed” so that such exhibits receive the favorable liability treatment described above. A company may, however, indicate that such disclosure or exhibit, or part of a disclosure or exhibit, is being "filed" rather than "furnished" so that it is automatically incorporated into a registration statement, but this of course elevates the liability protections on such disclosure or exhibit.
This is just the preview of the feature presentation, so be sure to consult your outside counsel to ensure your filings are properly "filed" … or "furnished!"