Spongetech Delivery Systems, Inc. (fka SPNGQ)

[loanranger]

"Although, I can find no bright line test that has been adopted in order to determine when an amendment to a Schedule 13D is officially "prompt."..."

Glad to hear that.....because there isn't one! However we don't have to rely on the Selective Disclosure definition of the term, because the 13D use has been tackled before.

Hopefully the folks in charge of such things will recognize that this post pertains to Pike and SPNG and leave it on the board.

What I think that you will find the following to say, in my words, is that if it can be reasonably expected that the "material information" that requires the amendment will have an impact on an investors perception of the share price of the stock, then the amendment must be filed as soon as reasonably practicable....the next business day. The SEC's own example, referenced below, makes it clear enough, but it may be too obvious to learn anything from in terms of "but what about amendments that aren't quite so market-moving?"

http://www.sec.gov/rules/final/34-39538.txt
SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 240

[Release No. 34-39538; File No. S7-16-96

<(14)> The determination of what constitutes "promptly" under Regulation 13D-G is based upon the facts and circumstances surrounding the materiality of the change in information triggering the filing obligation and the filing person's previous disclosures. Any delay beyond the date the filing reasonably can be filed may not be prompt. See In the Matter of Cooper Laboratories, Inc., Release No. 34-22171 (June 26, 1985).


http://content.lawyerlinks.com/default.htm#http://content.lawyerlinks.com/library/sec/sec_enforcement/cooper_laboratories.htm
In the Matter of COOPER LABORATORIES, INC.
June 26, 1985
Release No. 34-22171

Read the above when you have time....it's too lengthy to post, but very informative.
Basically Coopers had a stake in another company, Frigitronics, and had already filed a 13D on 8/20/84 to reflect their position. They continued to purchase shares until, on 9/6/84, they reached the point where they had added in excess of 1% of Frigitronics o/s shares since their 8/20 filing. So at that point they became obligated to "promptly" file an amendment. They did not, however, file the amendment until 9/13....and continued to acquire shares during the intervening trading days.
The SEC made it very clear that that wasn't what they meant by "promptly", especially since the people that traded (or chose not to trade) Frigitronic shares between 9/7 and 9/13 in the open market were deprived of information that the rule was designed to provide. They made Cooper create a fund for any investors who could figure out how to file a claim that established that they had losses as a result of the delay.

Here are a few quotes from the release:
"No bright line test has been adopted in order to determine when an amendment to a Schedule 13D is "prompt"."
"Whether an amendment to a Schedule 13D is "prompt" must be judged, at least in part, by the markets sensitivity to the particular change of fact triggering the obligation to amend, and the effect on the market of the filing persons previous disclosures."
And here's the one that I like:
"Although the promptness of an amendment to a Schedule 13D must be judged in light of all the facts and circumstances of a particular situation, "any delay beyond the time the amendment reasonably could have been filed may not be deemed to be prompt." See letter from Division of Corporation Finance to Law, Weathers, Richardson & Dutcher (Feb. 13, 1976)."

The thing that I don't understand......and never will......is why they don't just strip this issue of its mystery, freeing up a bunch of lawyers to find more valuable pursuits, and require any amendment that requires filing under the rule to be filed the next day. Boneheads, all of 'em.