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12240.1 A Form 8-K filed in connection with a reverse acquisition should disclose under Item 5.03 of the Form 8-K any intended change in fiscal year from the fiscal year end used by the registrant prior to the acquisition.
12240.2 A change in fiscal year end cannot result in the lapse in reporting any periods of financial statements for either the registrant or the operating company whose financial statements become those of the registrant after consummation of the acquisition.
12240.3 For example, assume a reverse acquisition between 2 public reporting companies occurs on July 15. The legal acquirer has a July 31 year-end and the accounting acquirer has a December 31 year-end. The legal acquirer changed its year end to December 31 in conjunction with a reverse acquisition. The accounting acquirer should still file a Form 10-Q for the quarter ended June 30 even if it were technically eligible to file a Form 15 to cease its reporting prior to the due date of the Form 10-Q. Otherwise, there would be a lapse in periodic reporting for the accounting acquirer for the three and six months ended June 30. It is not sufficient to file a Form 8-K that includes these financial statements and related information.
The legal acquirer would continue to file all periodic reports as they become due for periods ending prior to the consummation of the merger. If the merger is consummated after the latest Balance Sheet date but prior to the due date of the latest periodic report, a subsequent events footnote to the financial statements should describe the reverse merger.
12240.4 Transition Reports (Last updated: 6/30/2011)
If the registrant adopts the fiscal year of the accounting acquirer (operating company):
If the registrant continues the fiscal year of the legal acquirer (registrant):
  • If the accounting acquirer is a public reporting company, file periodic reports for periods ending prior to the consummation of the acquisition as they become due in the ordinary course of business. Starting with the periodic report for the quarter in which the acquisition was consummated, file reports based on the fiscal year of the accounting acquirer. Those financial statements would depict the operating results of the accounting acquirer, including the acquisition of the registrant (legal acquirer) from the date of consummation. This report should also include financial statements of the accounting acquirer for any subsequent interim periods that were not included in its S-X 3-05 financial statements previously filed on Form 8-K or 20-F, to avoid any lapses in reporting.
  • If the accounting acquirer is a private operating company, file a Form 8-K or 20-F if the original Form 8-K or 20-F filed for the reverse acquisition did not include audited financial statements of the accounting acquirer for the latest fiscal year end or quarter that already passed. The surviving entity should file the required information on an amended Form 8-K or 20-F within the time period specified in the appropriate annual or quarterly report form from the accounting acquirer's fiscal year or quarter end.
  • For example, a legal acquirer has an 8/31 year end and the accounting acquirer has a 10/31 year end. The acquisition took place on 11/10/X5. The 8 - K included financial statements of the accounting acquirer for the three years ended 10/31/X4 and interim period ended 7/31/X5. A Form 8-K or 20-F for the year ended 10/31/X5 should be filed to include the financial statements of the accounting acquirer for the year ended 10/31/X5, to avoid a lapse in reporting.
  • This would apply to both a shell reverse acquisition and a reverse acquisition between two companies that have a business.

If the accounting acquirer is also a public company, it should file all reports due for periods ending prior to the acquisition to avoid any lapses in reporting, despite its ability to file a Form 15.
  • File periodic reports for periods ending prior to the consummation of the acquisition as they become due in the ordinary course of business.
  • If the accounting acquirer also is a public company, it should file all reports due for periods ending prior to the acquisition to avoid any lapses in reporting, despite its ability to file a Form 15.
  • File a transition report on Form 10-K, 10-Q or 20-F containing the audited financial statements of the accounting acquirer for the necessary transition period (generally, from the end of the accounting acquirer's most recently completed fiscal year to the next following date corresponding with the end of a fiscal year of the legal acquirer). For example, a legal acquirer has a 7/31 FYE and an accounting acquirer has a 12/31 FYE. A seven month transition period would result and need to be filed on Form 10-K.
  • The transition report on Form 10-K is due no later than 90 days (45 days for transitional report on Form 10-Q) after the consummation of the acquisition for non-accelerated filers; and no later than 75 days for accelerated filers and 60 days for large accelerated filers (40 days for transitional report on Form 10-Q). The Form 10-Q for the combined entity should be filed within the required time period after the end of the quarter during which the acquisition was consummated (45 days for non-accelerated filers and 40 days for accelerated filers).
  • The transition report on Form 20-F for a transition period more than six months is due no later than six months after the consummation of the acquisition. The transition report on Form 20-F for periods of six months or less (but more than one month) is due no later than three months after consummation of the acquisition.
  • For both bullet points above, no transition report is required if the transition period is one month or less.

This is a work of the U.S. Government

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