Search within this section
Select a section below and enter your search term, or to search all click Financial Reporting Manual
Favorited Content
12220 Form 8-K
us SEC - Financial Reporting Manual
12220.1 Reverse Recapitalization with a Shell Company
a. A shell company is a registrant (other than an asset-backed issuer) that has no or nominal operations and either has:
1. no or nominal assets,
2. assets consisting solely of cash and cash equivalents, or
3. assets consisting of any amount of cash and cash equivalents and nominal other assets.
b. For transactions between a shell company and a private operating company whereby the registrant ceases to be a shell company, a Form 8-K that includes Items 2.01, 5.01, 5.06 and 9.01 must be filed no later than four business days after the consummation of the acquisition. The Form 8-K must include for the private operating company all content required by a Form 10 initial registration statement. The financial statement periods required in the Form 8-K are based on the earlier of the filing date of the 8-K or the due date of the 8-K reporting the transaction. (Last updated: 3/31/2009)
As noted in Section 5230.1, the staff looks to the accounting acquirer's eligibility as a SRC at the time of the reverse acquisition for purposes of the disclosures to be provided in the Form 8-K. Accordingly, if the accounting acquirer meets the definition of a smaller reporting company, the age of its financial statements required to be included in the Form 8-K is determined by applying S-X 8-08. An accounting acquirer not meeting the definition of a smaller reporting company, however, should comply with the updating requirements of S-X 3-12. (Last updated: 3/31/2012)
c. In certain circumstances, the due date or filing date of the Form 8-K, whichever is earlier, occurs after the end of the private company's most recently completed annual or quarterly period, but before financial statements for that annual or quarterly period would be required to be presented in a Form 10. In these circumstances the financial statements of the private operating company required by Items 2.01(f) and 9.01 of Form 8-K may not include the private company's most recently completed annual or quarterly period.
The registrant, however, remains subject to Exchange Act Rules 13a-1 and 13a-13, or 15d-1 and 15d-13, requiring annual and quarterly reports, respectively. The registrant must file its applicable annual and quarterly reports. Additionally, the registrant must file an amended Form 8-K with the financial statements of the private operating company's most recently completed annual or quarterly period prior to the date of the reverse recapitalization, as applicable, within the number of days applicable based on the shell company's filing status (60, 75, and 90 days for annual periods and 40, 40, and 45 days for interim periods for large accelerated, accelerated, and non-accelerated filers, respectively) after the private operating company's period end. (Last updated: 12/31/2011)
For example, assume a non-accelerated shell and private operating company both have a calendar year end and the reverse recapitalization takes place on February 1, 20X2. Within four business days of the transaction, the audited financial statements of the private operating company for the year ended December 20X0 and the unaudited financial statements for the interim period ended September 30, 20X1 and comparable prior period would be filed on Form 8-K, in addition to the other information required by Items 2.01, 5.01, 5.06, and 9.01, as described above. The registrant would file its annual report on Form 10-K for the year ended December 31, 20X1 within 90 days after December 31, 20X1. In addition, the registrant would file the same information that would be required in a Form 10-K of the private operating company in an amended Form 8-K by the same Form 10-K due date — 90 days after December 31, 20X1. (Last updated: 3/31/2011)
d. There is no 71 day extension of time available to file the content for the private operating company, the pro forma information, or other required information.
e. For transactions between a shell company that is a foreign private issuer and a private operating company whereby the registrant ceases to be a shell company, a Form 20-F should be filed no later than four business days after the consummation of the acquisition that includes all of the information for the private operating company that Form 20- F requires for registration of securities. Foreign private issuers that elect to report on domestic issuer forms should file the required information on a Form 8-K and not Form 20-F.
f. Rule 13a-1 applies to a foreign private issuer shell company that ceases to be a shell company upon consummating a transaction with a private operating company. In certain circumstances where the due date or filing date, whichever is earlier, of the Form 20-F reporting the transaction is within three months after year end, the financial statements of the private operating company required by Rule 13a-19 may not include the most recent full fiscal year. In these cases, the surviving entity shall file the information that would be required to be included in an annual report for the private operating company for the most recent fiscal year. The surviving entity shall file the required information on a Form 20-F within the time period required.
g. There is no Exchange Act Rule 12b-25 extension of the time available to file a reverse acquisition with a shell company reported on Form 20-F.
h. If the legal acquirer/registrant previously filed the required information, such as in a proxy statement or Form S-4/F-4, the registrant may identify in the Form 8-K or 20-F the previous filing in which all the disclosures are included, instead of repeating the disclosures in the 8-K or 20-F.
NOTE: If a public shell that is a smaller reporting company enters into a reverse acquisition with a public or non-public operating company, refer to Topic 5, Smaller Reporting Companies, for a discussion of smaller reporting company eligibility requirements. |
12220.2 Reverse Acquisition with a domestic registrant that is not a shell company (Last updated: 6/30/2012)
a. Report the acquisition in an Item 2.01 Form 8-K no later than 4 business days after the consummation of the reverse acquisition. If the accounting acquirer's financial statements are not included in that Form 8-K, the registrant should so indicate in the Form 8-K and state when the required financial statements will be filed. That Form 8-K also should include disclosures under Item 4.01 about any intended change in independent accountants, under Item 5.01 about any change in control of the registrant, and under Item 5.03 about any changes in fiscal year end from that used by the registrant prior to the acquisition, as applicable. Most typically, registrants adopt the fiscal year and auditor of the accounting acquirer, but that is not required.
b. Financial statements of the accounting acquirer (the legal acquiree) and S-X Article 11 pro forma financial information giving effect to the reverse acquisition should be filed in an Item 9.01 Form 8-K when available, but no later than 71 calendar days after the date that the initial Form 8-K reporting the transactions must be filed (that is, the date which is 4 business days after the transaction is consummated plus 71 calendar days). If the required financial statements and pro forma financial information are not available to be provided with the initial Form 8-K, they must be filed by amendment to that form. After consummation, the accounting acquirer's financial statements become the financial statements of the registrant under U.S. GAAP. The Form 8-K should include the following with respect to the accounting acquirer:
1. Audited financial statements for the three most recently completed fiscal years; or two years, if the registrant is a smaller reporting company; and
2. Unaudited interim financial statements for any interim period and the comparable prior year period.
NOTE: See Section 10120.2 to determine whether the registrant qualifies as an EGC for purposes of filing its Form 8-K subsequent to the merger transaction. See Section 10220.5 regarding financial statement requirements in a Form 8-K when the transaction involves an EGC operating company. (Last updated: 6/30/2013) |
c. S-X 3-06 that permits the filing of financial statements of an acquired business for nine to twelve months to satisfy one year would not apply to the financial statements of the accounting acquirer/legal acquiree in a reverse acquisition. The financial statements of the accounting acquirer are deemed to be predecessor financial statements, which should be filed for the periods required by S-X 3-01 through 3-04.
d. Even though an issuer complies with Exchange Act requirements following a reverse acquisition, Securities Act form provisions may require it to provide more current audited financial statements and MD&A of the accounting acquirer/legal acquiree in a Securities Act registration statement. In other words, the requirement to file audited financial statements and MD&A of the accounting acquirer/legal acquiree may be accelerated when a Securities Act registration statement is filed. (Last updated: 12/31/2011)
This is a work of the U.S. Government
Link copied
