(Via Richardson & Patel Newsletter)
SEC PROVIDES GUIDANCE ON SUPER 8-K’S
In 2005, the SEC adopted a rule that required the filing of what is an equivalent to a public offering prospectus for a merger with a public reporting shell company. In recent months the SEC has taken to reviewing these transactions and issued advice based on these reviews.
The SEC has reiterated that virtually any acquisition, including by lease, merger or exchange, triggers the obligation to file a Super 8-K. Issuers were also reminded that Item 9.01(b) of Form 8-K requires pro forma financial information to be included, not just the financial statements of the acquired company. Additionally, any exhibits, including those representing material contracts, have to be in English. Clear disclosure of holding company and control arrangements, as well as a detailed description of both current and planned business going forward is also required. Lastly, if risk factors are included, they must be tailored specifically to the company.
The SEC also offered guidance pertaining to the involvement of officers in the company. If officers are not spending full time in the business, they should be specific about the time they do devote. It is also important to include a summary compensation table for the acquired company’s most recent fiscal year. In disclosing affiliate and related transactions, a two year look back prior to the public company’s latest fiscal year is required in describing the standards used to determine director independence
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