2045.1 This section covers three broad components:

See Section 2050 for a discussion of "Age of Financial Statements - Interaction of S-X 3-05(b)(4) and Instruction to Item 9.01 of Form 8-K"

2045.2 1933 Act Registration Statement - Age of Financial Statements — General
(Last updated: 6/30/2009)

The registrant should comply with age-of-financial-statement rules with respect to itself and all completed and probable acquirees at the effective date. Any updated financial statements required to be included or incorporated by reference as appropriate in the registration statement but which were not required to be filed previously in a specific Exchange Act report may be filed under cover of Form 8-K pursuant to Item 8.01.

For example: A registrant files a Form 8-K on August 6 (i.e., the 4^th business day subsequent to consummation) reporting the acquisition of a business on July 31 that is not an accelerated filer or a large accelerated filer. That Form 8-K included unaudited financial statements for the 3 months ended March 31. If a registration statement is filed after August 12, the financial statements of the acquired entity must be updated through June 30 so that the acquired entity's financial statements meet the age of financial statement requirements of Regulation S-X. If the acquisition was consummated on or prior to June 30, updated financial statements would not be required.

2045.3 1933 Act Registration Statement - Age of Financial Statements —Delayed and Continuous Offerings -
(Last updated: 3/31/2009)

After effectiveness, a domestic registrant has no specific obligation to update the prospectus except as stipulated by 1933 Act Section 10(a)(3) and S-K 512(a) with respect to any fundamental change. If an acquisition would be significant under S-X 3-05, management should consider whether the probability of consummation of the transaction would represent a fundamental change. It is the responsibility of management to determine what constitutes a fundamental change. The registrant should also consider whether individually insignificant acquisitions occurring subsequent to effectiveness, when combined with individually insignificant acquisitions that occurred after the most recent audited balance sheet in the registration statement but prior to effectiveness, may be of such significance in the aggregate that an amendment is necessary. Notwithstanding the guidance in Section 2045.3, offerings pursuant to effective registration statements cannot proceed if the significance of an acquisition exceeds 50% and financial statements have not been filed. See Section 2050.3.

2045.4 1933 Act Registration Statement - Age of Financial Statements — Well-Known Seasoned Issuers - "Well-known seasoned issuer" is defined in Regulation C, Rule 405. Automatic shelf registration statements and post-effective amendments of well-known seasoned issuers become effective immediately upon filing [Regulation C, Rule 462(e) and (f)]. Immediate effectiveness does not exempt a well-known seasoned issuer from the requirement to comply with the age of financial statement requirements with respect to itself and all completed and probable acquirees at the time of effectiveness. Consider the following examples.

Financial statements of the acquired or to be acquired businesses for the periods specified by S-X 3-05 must be included or incorporated in the automatic shelf registration statement prior to filing the automatic shelf registration statement or post-effective amendment, even if such financial statements are not yet required to be filed on Form 8-K.

Financial statements of an acquired or to be acquired business that is significant in excess of 20% but not in excess of 50% need not be filed prior to the effective date (i.e., the filing date) of an automatic shelf registration statement or post-effective amendment filed by a well-known seasoned issuer if the effective date occurs during the 4 business days plus 71 calendar day period subsequent to consummation.

2045.5 1933 Act Registration Statement - Age of ANNUAL Financial Statements -

2045.6 1933 Act Registration Statement Age of Financial Statements- Requirement to File Acquiree's ANNUAL Financial Statements that are More Recent than Registrant's Financial Statements - In limited circumstances involving a registrant that would be required to update after the 45th day, applying this rule results in a requirement to file audited financial statements of the acquiree as of a date more recent than is required for the registrant. If the registrant believes providing updated audited financial statements would impose an unreasonable burden under the circumstances, the registrant may request CF-OCA to consider granting relief if the acquiree's financial statements are updated on an unaudited basis through either the registrant's latest balance sheet date or the acquiree's year-end. Requests for relief should be made in writing prior to filing.

For example: A registrant with a December 31, 2007 year end is required under S-X 3-01(c) to update its audited financial statements after February 14, 2008 in a registration statement. The registrant is acquiring a business with a November 30, 2007 year end. The acquired business is neither an accelerated filer nor a large accelerated filer. If the registration statement is effective February 1, 2008, the registration statement would require audited financial statements of the registrant for the year ended December 31, 2006 and unaudited financial statements for the nine months ended September 30, 2007. Unless relief is obtained, the target's audited financial statements would be required for the year ended November 30, 2007 since February 1 is beyond 45 days after target's year end and the registrant is not eligible for relief under S-X 3-01(c).

2045.7 1933 Act Registration Statement - Age of INTERIM Financial Statements - For interim period financial statements in a 1933 Act registration statement, age requirements are the same as if the acquiree were the registrant (see Section 1200), however the requirement to audit interim period information depends on whether the acquired business is a predecessor and, if not a predecessor, whether the registrant applied S-X 3-05 or SAB 80, which is discussed at Section 2070.

2045.8 1933 Act Registration Statement Age of INTERIM Financial Statements - Predecessor — If the acquired business is a "predecessor" of the registrant (See Section 1170), and the acquisition date is on or before the registrant's most recent audited balance sheet required to be included in the registration statement, then interim financial statements of the predecessor should be presented and audited through the date of acquisition. If the acquired business is a "predecessor" of the registrant and the acquisition date is after the registrant's most recent audited balance sheet required to be included in the registration statement, then interim financial statements of the predecessor should be presented for the same periods as if the predecessor were the registrant and may be unaudited. In this circumstance, the predecessor period between registrant's latest balance sheet and acquisition date would need to be audited in registrant's next Form 10-K.

2045.9 1933 Act Registration Statement Age of INTERIM Financial Statements —S-X 3-05 Acquiree — If significance is measured using S-X 3-05, interim financial statements of an acquired business need not be audited. Age requirements are the same as if the acquiree were the registrant. See Section 1200. Consequently, financial statements of an acquired business need not be updated if the omitted period is less than a complete quarter. However, disclosure of significant events occurring during the omitted interim period may be necessary.

For example: If an acquisition subject to S-X 3-05 or S-X 8-04 (i.e., not a predecessor) was consummated on September 29, the staff generally would not require that the financial statements of the acquired entity be updated past June 30. However, disclosure of significant events occurring during the omitted interim period may be necessary.

2045.10 1933 Act Registration Statement Age of INTERIM Financial Statements — S-X 3-05 Acquiree and Updating Form 8-K - In some cases, the financial statements provided in Form 8-K may need to be updated in a registration statement to comply with the 135-day rule (for an acquired business that is neither an accelerated filer nor a large accelerated filer) or the 130 day rule (for an acquired business that is either an accelerated filer or a large accelerated filer). See Section 1200.

For example: A registrant files a Form 8-K reporting an acquisition of a business that is neither an accelerated filer nor a large accelerated filer which occurred on July 10. The registrant and the acquiree have calendar fiscal year ends. The Form 8-K includes the acquiree's interim financial statements as of March 31. The staff is likely to not accelerate the effective date of a registration statement filed in December of the same year unless the acquiree's financial statements are updated through at least June 30.

2045.11 1933 Act Registration Statement Age of INTERIM Financial Statements - SAB 80 Acquiree - If significance is measured using SAB 80, see Section 2070, "SAB 80: Application of S-X 3-05 in Initial Registration Statements," and the discussion in Section 2070.9, "Interim Financial Statements."

2045.12 Proxy Statements - Age of Financial Statements - For purposes of proxy statements, the staff interprets the updating requirements in the same manner as under the 1933 Act.

2045.13 Form 8-K Age of Financial Statements — General. The staff believes that the age of financial statements in a Form 8-K should be determined by reference to the filing date of the Form 8-K initially reporting consummation of the acquisition. If no filing is made timely (on or prior to the 4th business day following the acquisition date), the age of financial statements required to be filed should be determined by reference to the 4th business day after the consummation of the acquisition. See Section 2045.17 for an exception to this position.

2045.14 Form 8-K - Age of ANNUAL Financial Statements -

2045.15 Form 8-K - Age of INTERIM Financial Statements —

2045.16 Form 8-K Age of Financial Statements - Effect of Previously Filed Financial Statements - General Instruction B.3. to Form 8-K states in part: "If the registrant previously has reported substantially the same information as required by this form, the registrant need not make an additional report of the information on this form." Financial statements of an acquiree are not required in Form 8-K if they were previously filed by the registrant. Examples of when previously filed acquiree financial statements will not be deemed "substantially the same" pursuant to this instruction include:

Example 1: Form S-4 included unaudited financial statements for the three months ended March 31 for a business to be acquired. The business combination was consummated on October 1, and a Form 8-K reporting the acquisition was timely filed. No financial statements are required in the Form 8-K, unless there were significant subsequent events that would materially affect an investor's understanding of the target company. However, if the business combination had been consummated on November 20, the financial statements would have had to be updated through September 30.

Example 2: Form S-4 contained unaudited financial statements of the entity to be acquired for the nine months ended September 30. Updated audited financial statements of the acquired entity are required in a Form 8-K if the business combination is consummated, and the Form 8-K is filed after the 89th day subsequent to December 31. Note that in a registration statement, updated audited financial statements of the acquired entity may be required before the 90th day, if either the acquired business is an accelerated filer or a large accelerated filer or the registrant does not meet the requirements under S-X 3-01(c). Refer to Section 2045.5, "1933 Act Registration Statement - Age of ANNUAL Financial Statements" regarding the requirements to provide audited financial statements of an acquired entity.

Example 3 : If a registrant included financial statements of a previously nonpublic smaller reporting company-eligible target in a Form S-4 and those financial statements complied with smaller reporting company reporting requirements instead of S-X reporting requirements for companies other than smaller reporting companies (see Section 2200.2), those financial statements would not be deemed "substantially the same" pursuant to Form 8-K; Gen. Instruction B.3. Financial statements that comply with S-X would need to be filed in a Form 8-K if the S-X 3-05 significance threshold is met.

2045.17 Form 8-K Age of Financial Statements - EXCEPTION to use of the date Form 8-K must be filed to determine age of acquired business financial statements in a Form 8-K
(Last updated: 3/31/2009)

When the effective date of a registration statement occurs subsequent to filing the initial Form 8-K reporting the acquisition, but within the 71 calendar day extension to file the acquired business financial statements and the acquired business is significant in excess of 20% but less than 50%, the age of the acquired business financial statements presented in the Form 8-K should be based on the effective date of the registration statement, not the Form 8-K filing date. This is true even though S-X 3-05(b)(4) and S-X 8-04(c)(4) permit a registrant to exclude from its registration statement financial statements of an acquired business if its significance does not exceed 50% and the registration statement is declared effective (or immediately effective for well-known seasoned issuers) not more than 74 days after consummation of the acquisition. S-X 3-05(b)(4) and S-X 8-04(c)(4) were not intended to change the age of financial statements, simply the timing of filing them. Consider the following example.

Example — Analysis: If the age of financial statements were based on the date the Form 8-K reporting the transaction was filed (i.e., 4/10/2008), acquired business financial statements for the year ended 12/31/2007, but no interim financial statements of the acquired business, would be required. If age of financial statements were based on the effective date of the registration statement, acquired business financial statements for the year ended 12/31/2007 and the three months ended 3/31/2008 and 3/31/2007 would be required. The staff interprets the requirements of S-X 3-05 and S-X 8-04 to mean that the acquired business financial statements for the year ended December 31, 2007 and the three months ended 3/31/2008 and 3/31/2007 would be required in the Form 8-K.