Important facts to note regarding the SUPER 8K
A SUPER 8K is an industry term used for a Form 8K filed under Item 2.01 for the completion of a transaction, and under 5.06 to report a change in shell status and must be filed within 4 business days of the closing. The 8K requires that the company file information that would be required if the company was filing a Form 10 registration statement including audited financial statement included inside.
Item 5.06 -Change in Shell Company Status.
If a registrant that was a shell company, other than a business combination related shell company, as those terms are defined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), has completed a transaction that has the effect of causing it to cease being a shell company, as defined in Rule 12b-2, disclose the material terms of the transaction. Notwithstanding General Instruction B.3. to Form 8-K,
if any disclosure required by this Item 5.06 is previously reported, as that term is defined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), the registrant may identify the filing in which that disclosure is included instead of including that disclosure in this report.
In other words, the SUPER 8K is an 8K with a Form 10 registration statement included inside.
The SEC guidance on a SUPER 8K is in the form of a summary of common SEC staff comments in response to filings. The SEC stresses filers to make sure to provide the necessary disclosures required by Items 2.01, 5.01, and 9.01; and to be sure to fully support the conclusion that they’re no longer a shell company. This includes a discussion of current and future business operations, and how a company generates or intends to generate revenue.
Item 2.01 requires disclosure of information pertaining to the transaction itself. The SEC guidance reminds companies that an asset acquisition can result in a company no longer being a shell company in the same way that a business acquisition can, and thus requires a SUPER 8K filing within 4 business days.
Item 2.01 Completion of Acquisition or Disposition of Assets.
If the registrant or any of its majority-owned subsidiaries has completed the acquisition or disposition of a significant amount of assets, otherwise than in the ordinary course of business, disclose the following information:
(a) the date of completion of the transaction;
(b) a brief description of the assets involved;
(c) the identity of the person(s) from whom the assets were acquired or to whom they were sold and the nature of any material relationship, other than in respect of the transaction, between such person(s) and the registrant or any of its affiliates, or any director or officer of the registrant, or any associate of any such director or officer;
(d) the nature and amount of consideration given or received for the assets and, if any material relationship is disclosed pursuant to paragraph (c) of this Item 2.01, the formula or principle followed in determining the amount of such consideration;
(e) if the transaction being reported is an acquisition and if a material relationship exists between the registrant or any of its affiliates and the source(s) of the funds used in the acquisition, the identity of the source(s) of the funds unless all or any part of the consideration used is a loan made in the ordinary course of business by a bank as defined by Section 3(a)(6) of the Act, in which case the identity of such bank may be omitted provided the registrant:
(1) has made a request for confidentiality pursuant to Section 13(d)(1)(B) of the Act; and
(2) states in the report that the identity of the bank has been so omitted and filed separately with the Commission; and (f) if the registrant was a shell company, other than a business combination related shell company, as those terms are defined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), immediately before the transaction, the information that would be required if the registrant were filing a general form for registration of securities on Form 10 under the Exchange Act reflecting all classes of the registrant’s securities subject to the reporting requirements of Section 13 (15 U.S.C. 78m) or Section 15(d) (15 U.S.C. 78o(d)) of such Act upon consummation of the transaction. Notwithstanding General Instruction B.3. to Form 8-K, if any disclosure required by this Item 2.01(f) is previously reported, as that term is defined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2),
the registrant may identify the filing in which that disclosure is included instead of including that disclosure in this report.
Instructions.
1. No information need be given as to:
(i) any transaction between any person and any wholly-owned subsidiary of such person;
(ii) any transaction between two or more wholly-owned subsidiaries of any person; or
(iii) the redemption or other acquisition of securities from the public, or the sale or other disposition of securities to the public,
by the issuer of such securities or by a wholly-owned subsidiary of that issuer.
2. The term acquisition includes every purchase, acquisition by lease, exchange, merger, consolidation, succession or other acquisition, except that the term does not include the construction or development of property by or for the registrant or its subsidiaries or the acquisition of materials for such purpose. The term disposition includes every sale, disposition by lease, exchange, merger, consolidation, mortgage, assignment or hypothecation of assets, whether for the benefit of creditors or otherwise, abandonment, destruction, or other disposition.
3. The information called for by this Item 2.01 is to be given as to each transaction or series of related transactions of the size indicated. The acquisition or disposition of securities is deemed the indirect acquisition or disposition of the assets represented by such securities if it results in the acquisition or disposition of control of such assets.
4. An acquisition or disposition shall be deemed to involve a significant amount of assets:
(i) if the registrant’s and its other subsidiaries’ equity in the net book value of such assets or the amount paid or received for the assets upon such acquisition or disposition exceeded 10% of the total assets of the registrant and its consolidated subsidiaries; or (ii) if it involved a business (see 17 CFR 210.11-01(d)) that is significant (see 17 CFR 210.11-01(b)).
Acquisitions of individually insignificant businesses are not required to be reported pursuant to this Item 2.01 unless they are related businesses (see 17 CFR 210.3-05(a)(3)) and are significant in the aggregate.
5. Attention is directed to the requirements in Item 9.01 (Financial Statements and Exhibits) with respect to the
filing of:
(i) financial statements of businesses acquired;
(ii) pro forma financial information; and (iii) copies of the plans of acquisition or disposition as exhibits to the report
The SEC specifically states, ”We frequently remind companies that Instruction 2 of Item 2.01 makes clear that the term “acquisition” includes every purchase.”
Acquisition by lease, exchange, merger, consolidation, succession, or other acquisitions. When a company’s reverse merger includes an asset acquisition, the asset acquisition portion of the transaction requires full disclosure as if it were a standalone transaction. Item 5.01 requires disclosures regarding a change of control.
The SEC frequently reminds filers that they must include all the disclosures required by this item including new information on the new control persons, and as required in a Form 10, full biographical disclosures must be included.
Item 5.01 Changes in Control of Registrant.
(a) If, to the knowledge of the registrant’s board of directors, a committee of the board of directors or authorized officer or officers of the registrant, a change in control of the registrant has occurred, furnish the following information:
(1) the identity of the person(s) who acquired such control;
(2) the date and a description of the transaction(s) which resulted in the change in control;
(3) the basis of the control, including the percentage of voting securities of the registrant now beneficially owned directly or indirectly by the person(s) who acquired control;
(4) the amount of the consideration used by such person(s);
(5) the source(s) of funds used by the person(s), unless all or any part of the consideration used is a loan made in the ordinary course of business by a bank as defined by Section 3(a)(6) of the Act, in which case the identity of such bank may be omitted provided the person who acquired control:
(i) has made a request for confidentiality pursuant to Section 13(d)(1)(B) of the Act; and
(ii) states in the report that the identity of the bank has been so omitted and filed separately with the
Commission.
(6) the identity of the person(s) from whom control was assumed;
(7) any arrangements or understandings among members of both the former and new control groups and their associates with respect to election of directors or other matters; and
(8) if the registrant was a shell company, other than a business combination related shell company, as those terms
are defined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), immediately before the change in control, the information that would be required if the registrant were filing a general form for registration of securities on Form 10 under the Exchange Act reflecting all classes of the registrant’s securities subject to the reporting requirements of Section 13 (15 U.S.C. 78m) or Section 15(d) 14 (15 U.S.C. 78o(d)) of such Act upon consummation of the change in control, with such information reflecting the registrant and its securities upon consummation of the transaction. Notwithstanding General Instruction B.3. to Form 8-K, if any disclosure required by this Item 5.01(a)(8) is previously reported, as that term is defined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), the registrant may identify the filing in which that disclosure is included instead of including that disclosure in this report.
(b) Furnish the information required by Item 403(c) of Regulation S-K (17 CFR 229.403(c)).
Item 9.01 is the Financial Statement and Exhibits section in the Form 8K. The SEC frequently reminds filers that they must include historical financial statements of the acquired private operating business or assets. In particular, the SUPER 8K must include two years of audited financial statements, and unaudited reviewed sub periods to date and pro forma financials. A SUPER 8K must include all Exhibits required to be filed with a Form 10. Although an 8K usually does not allow for a corporation by reference, the instruction for a SUPER 8K specifically allows for corporation by reference to other filings that contain disclosure or information that must be included in the SUPER 8K.
Item 9.01 Financial Statements and Exhibits.
List below the financial statements, pro forma financial information and exhibits, if any, filed as a part of this report.
(a) Financial statements of businesses acquired.
(1) For any business acquisition required to be described in answer to Item 2.01 of this form, financial statements of the business acquired shall be filed for the periods specified in Rule 3-05(b) of Regulation S-X (17 CFR 210.3-05(b)) or Rule 8-04(b) of Regulation S-X (17 CFR 210.8-04(b)) for smaller reporting companies.
(2) The financial statements shall be prepared pursuant to Regulation S-X except that supporting schedules need not be filed. A manually signed accountant’s report should be provided pursuant to Rule 2-02 of Regulation S-X (17 CFR 210.2-02).
(3) With regard to the acquisition of one or more real estate properties, the financial statements and any additional information specified by Rule 3-14 of Regulation S-X (17 CFR 210.3-14) or Rule 8-06 of Regulation S-X (17 CFR 210.8-06) for smaller reporting companies.
(4) Financial statements required by this item may be filed with the initial report, or by amendment not later than 71 calendar days after the date that the initial report on Form 8-K must be filed. If the financial statements are not included in the initial report, the registrant should so indicate in the Form 8-K report and state when the required
financial statements will be filed. The registrant may, at its option, 21 include unaudited financial statements in the initial report on Form 8-K.
(b) Pro forma financial information.
(1) For any transaction required to be described in answer to Item 2.01 of this form, furnish any pro forma financial information that would be required pursuant to Article 11 of Regulation S-X (17 CFR 210) or Rule 8-05 of Regulation S-X (17 CFR 210.8-05) for smaller reporting companies.
(2) The provisions of paragraph (a)(4) of this Item 9.01 shall also apply to pro forma financial information relative to the acquired business.
(c) Shell company transactions. The provisions of paragraph (a)(4) and (b)(2) of this Item shall not apply to the
financial statements or pro forma financial information required to be filed under this Item with regard to any transaction required to be described in answer to Item 2.01 of this Form by a registrant that was a shell company, other than a business combination related shell company, as those terms are defined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), immediately before that transaction. Accordingly, with regard to any transaction required to be described in answer to Item 2.01 of this Form by a registrant that was a shell company,
other than a business combination related shell company, immediately before that transaction, the financial statements and pro forma financial information required by this Item must be filed in the initial report. Notwithstanding General Instruction B.3. to Form 8-K, if any financial statement or any financial information required to be filed in the initial report by this Item 9.01(c) is previously reported, as that term is de
fined in Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2), the registrant may identify the filing in which that
disclosure is included instead of including that disclosure in the initial report.
(d) Exhibits. The exhibits shall be deemed to be filed or furnished, depending on the relevant item requiring such exhibit, in accordance with the provisions of Item 601 of Regulation S-K (17 CFR 229.601)and Instruction B.2 to this form.
Instruction.
During the period after a registrant has reported a business combination pursuant to Item 2.01 of this form, until the date on which the financial statements specified by this Item 9.01 must be
filed, the registrant will be deemed current for purposes of its reporting obligations under Section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)). With respect to filings under the Securities Act, however,
registration statements will not be declared effective and post-effective amendments to registrations statements will not be declared effective unless financial statements meeting the requirements of Rule 3-05 of Regulation S-X (17 CFR 210.3-05) are provided. In addition, offerings should not be made pursuant to effective registration statements, or pursuant to Rule 506 of Regulation D (17 CFR 230.506) where any purchasers are not accredited investors under Rule 501(a) of that Regulation, until the audited financial statements required by Rule 3-05 of Regulation S-X (17 CFR 210.3-05) are filed; provided, however, that the following offerings or sales of securities may proceed notwithstanding that financial statements of the acquired business have not been filed:
(a) offerings or sales of securities upon the conversion of outstanding convertible securities or upon the exercise of outstanding warrants or rights;
(b) dividend or interest reinvestment plans;
(c) employee benefit plans;
(d) transactions involving secondary offerings; or
(e) sales of securities pursuant to Rule 144 (17 CFR 230.144).
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