2050.1 Overview

Item 9.01 of Form 8-K requires a registrant to provide financial statements required by S-X 3-05 for any business acquisition required to be described in answer to Item 2.01 of Form 8-K. These financial statements may be provided in the initial Form 8-K or by amendment not later than 71 calendar days after the date that the initial Form 8-K is required. We refer to this as the "grace period."

Item 9.01 of Form 8-K permits certain offerings and sales of securities to occur during the grace period even if the acquiree's financial statements have not been filed. See Sections 2050.2 through 2050.5 for a discussion of the implications of the grace period on securities offerings and Securities Act registration statements.

While Rule 3-13 of Regulation S-X provides for the potential omission of certain financial statements or filing of substitution statements, it does not provide the staff the ability to waive the timely filing requirement of Form 8-K. If the financial statements and pro forma financial information required by Form 8-K are not filed within the grace period, then the filing will be considered deficient and, therefore, not filed in a timely manner for purposes of Form S-3 eligibility. Once the registrant has filed its audited financial statements that include the post-acquisition results of operations of the acquired entity for at least one year, CF-OCA, at the request of the registrant, will consider a request to accept audited financial statements for the acquired entity for a period of time less than that required by S-X 3-05/S-X 8-04. At a minimum, CF-OCA would expect audited pre- and post-acquisition financial statements to equal the periods required under S-X 3-05/S-X 8-04 and to have no break between the pre-acquisition and post-acquisition audited results.

A registrant may be unable to provide the financial statements required by Item 9.01 of Form 8-K. Sections 2050.6 and 2050.7 discuss some of the implications of failing to file the required financial statements during the grace period on securities offerings and Securities Act registration statements.

2050.2 Securities Offerings During the Grace Period Using a Registration Statement that became Effective Prior to Acquisition - Significance Does Not Exceed 50%

If significance does not exceed 50% and the financial statements of the acquired business have not been filed, S-X 3-05(b)(4)(i) permits use of effective registration statements during the grace period provided that the offering is not made by a blank check company pursuant to Regulation C, Rule 419.

2050.3 Securities Offerings During the Grace Period Using a Registration Statement that became Effective Prior to Acquisition — Significance Exceeds 50%

If significance exceeds 50% and the financial statements of the acquired business have not been filed, registrants should not make offerings pursuant to effective registration statements, or pursuant to Rules 505 and 506 of Regulation D if any purchasers are not accredited investors under Rule 501(a) of that Regulation, until the required audited financial statements are filed; provided however, that the following offerings and sales of securities may proceed during the grace period notwithstanding that the financial statements of the acquired business have not been filed:

2050.4 New Registration Statements or Post-Effective Amendments Filed During the Grace Period — Significance Does Not Exceed 50%

If significance does not exceed 50% and the financial statements of the acquired business have not been filed, then S-X 3-05(b)(4)(i) permits registration statements and post-effective amendments to registration statements, which do not relate to offerings by blank check companies pursuant to Regulation C, Rule 419, to become effective without financial statements of the acquired business.

2050.5 New Registration Statements or Post-Effective Amendments Filed During the Grace Period — Significance Exceeds 50%

If significance exceeds 50% and the financial statements of the acquired business have not been filed, registration statements and post-effective amendments to registration statements will not be declared effective. WKSIs should also not make offerings pursuant to registration statements that became effective during the grace period. See Section 2045.4 which describes a WKSI's obligation to comply with the requirements of S-X 3-05 at the time of filing of an S-3ASR.

2050.6 New Registration Statements or Post-Effective Amendments Filed After the Grace Period if Required Financial Statements Not Filed

Securities Act registration statements and post-effective amendments should include audited financial statements reporting on the operations of the acquired business for a time span equal to the periods for which audited financial statements are required by S-X 3-05 and pro forma financial information is required by S-X Article 11 at the effective date. WKSIs should also not make offerings pursuant to registration statements that became effective during the grace period. See Section 2045.4 which describes a WKSI's obligation to comply with the requirements of S-X 3-05 at the time of filing of an S-3ASR.

2050.7 Securities Offerings After the Grace Period Using a Registration Statement that became Effective Prior to Acquisition if Required Financial Statements Not Filed

After the grace period, registrants should not make offerings pursuant to effective registration statements, or pursuant to Rules 505 and 506 of Regulation D if any purchasers are not accredited investors under Rule 501(a) of that Regulation, until the required audited financial statements are filed; provided, however, that the following offerings and sales of securities made pursuant to registration statements that were effective prior to the acquisition may proceed notwithstanding that the financial statements of the acquired business have not been filed: