Calypso Wireless (fka CLYW)

[Cougar6]

Management did this backwards. The first announcement was not of a material definitive agreement because it was not enforceable. From that 8K:

"The settlement is subject to finalization of a formal settlement agreement"

A PR would work for that announcement.

However, this latest PR should have been in an 8K because it meets the definition of a material definitive agreement.

"We received substantial comment on this item at the proposing stage. In particular, many commenters opposed our proposal to require disclosure of letters of intent and other non-binding agreements in addition to disclosure of definitive agreements that are material to the company.35 They noted that disclosure of non-binding agreements could cause significant competitive harm to the company and create excessive speculation in the market.36 Several companies also stated that they use letters of intent extensively, but that few such letters culminate in a completed transaction.37

In response to the commenters, we eliminated the requirement that companies disclose their entry into non-binding agreements from this item.38 We have further replaced the proposed definition of "agreement" with a definition of "material definitive agreement" and have moved this definition from a proposed instruction into Item 1.01(b). We have clarified that only agreements which provide for obligations that are material to and enforceable against a company, or rights that are material to the company and enforceable by the company against one or more other parties to the agreement by the company, are required to be disclosed pursuant to Item 1.01, regardless of whether the material definitive agreement is enforceable subject to stated conditions."

http://www.sec.gov/rules/final/33-8400.htm#seciic

However, on a further reading I must make something clear. Filing the actual documents with the 8K are not necessary as long as they will be filed with the next periodic (quarterly) report. However, since management is not in the habit of filing those reports I would submit that they need to file the documents with the 8K.

"In response to these comments, we have eliminated the proposed requirement to file the material agreement as a Form 8-K exhibit. Prior to these amendments, material agreements did not need to be filed until the company's next periodic report as there was no Form 8-K item requiring disclosure of the event. Thus, the amendments do not change current requirements with regard to filing material agreements as exhibits, not do they affect the process for requesting confidential treatment of terms of those agreements. Given the initial disclosure of the agreement and its material terms, delayed filing of the exhibit should have minimal effect on the utility of the Item 1.01 disclosure. Pursuant to amended Item 601 of Regulation S-K, a company will have to file such agreement as an exhibit to the company's next periodic report or registration statement.43 However, we encourage companies to file the exhibit with the Form 8-K when feasible, particularly when no confidential treatment is requested."