On September 14, 2011, the Securities and Exchange Commission (SEC), Division of Corporate Finance issued its Staff Observations in the Review of Forms 8-K Filed to Report Reverse Mergers and Similar Transactions, which summarizes SEC staff comments in response to reports on Form 8-K reporting reverse mergers with public shells or similar transactions resulting in an issuer ceasing to be a shell company, often known as a Super 8-K because of its requirement that the Issuer provide Form 10 information.
These new requirements increase the appeal of direct public offerings and go public direct transactions for issuers who want to avoid the increased legal and compliance costs of reverse mergers. Reverse merger issuers often find their securities subject to Depository Trust (DTC) scrutiny, DTC Chills and global locks because of the fraud associated with reverse mergers.
In its release, the SEC indicates that the Super 8-K filings often fail to provide required disclosures under Items 2.01, 5.01 and 9.01 of Form 8-K. The requirements of these items are summarized below.
Item 2.01 Completion of acquisition or disposition of assets requires the issuer to provide information following a transaction that is outside the ordinary course of business. A corporate acquisition as well as an asset acquisition can result in a company no longer being a shell company. In the event that the asset acquisition results in a company no longer being a shell company, all information required in a Form 10 Registration Statement must be filed in a Super 8-K within four days of the completion of the transaction. The SEC release provides, we frequently remind companies that Instruction 2 to Item 2.01 makes clear that the term acquisition includes every purchase, acquisition by lease, exchange, merger, consolidation, succession or other acquisition. Further, when a company's reverse merger or similar transaction includes an asset acquisition as defined in Item 2, then an Item 2.01 disclosure is also required.
Item 5.01 requires disclosures regarding a change of control. Issuers must include all disclosures required by Item 5.01 when filing a Super 8-K which include:
(i) identity of the person(s) acquiring such control;
(ii) date and description of the transaction which resulted in the change in control;
(iii) basis of control, including percentage of voting securities of the registrant now beneficially owned by the person(s) who acquired control;
(iv) amount of consideration used by the person(s) acquiring control;
(v) source of funds used by the person(s) acquiring control;
(vi) the identity of the person(s) from whom control was assumed;
(vii) any arrangements or understandings among the members of both the former and new control groups with respect to the election of directors or other matters; and
(viii) the information required by Item 403(c) of Regulation S-K.
Item 9.01 is the Financial Statements and Exhibits section of the Form 8-K. Issuers must include historical financial statements of the acquired private operating business. In particular, the Form 8-K must include two years of audited financial statements and unaudited reviewed interim periods to the date of filing. In addition, the issuer must include pro forma financial information accounting for the combined companies.
This memorandum is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. For more information concerning the rules and regulations affecting the use of Rule 144, Form 8K, FINRA Rule 6490, Rule 506 private placement offerings, Regulation A, Rule 504 offerings, Rule 144, SEC reporting requirements, SEC registration on Form S-1 and Form 10, Pink Sheet listing, OTCBB and OTC Markets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, go public direct transactions and direct public offerings.