Super 8-K Filing Requirements- A “Super 8-K” is an industry term used for an 8-K filed under Item 2.01 for the completion of a transaction and Item 5.06 of Form 8-K to report a change in shell status. Where a company completes a transaction such as a reverse merger, business acquisition or asset acquisition which has the effect of causing it to cease being a shell company, it must file an 8-K under Items 2.01 and 5.06 within 4 business days of the closing. This 8-K requires that the company file the information that would be required if the company were filing a Form 10 registration statement including audited financial statements. In other words, a Super 8-K is an 8-K with a Form 10 registration statement included inside.
The SEC guidance on a Super 8-K 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 which I’ll briefly describe, and to be sure to fully support the conclusion that they are no longer a shell company including 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 regarding the transaction itself. 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 require a super 8-K within 4 days of closing. The SEC specifically states “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”. Moreover, when a company’s reverse merger includes an asset acquisition as well, the asset acquisition portion of the transaction requires full disclosures as it would if it was a stand alone 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 information on the new control persons and that as required in a Form 10, full biographical and bad actor disclosures must be included.
Item 9.01 is the Financial Statements and Exhibits section of the Form 8-K. The SEC frequently reminds filers that they must include historical financial statements of the acquired private operating business or assets. In particular, the super 8-K must include two years of audited financial statements and unaudited, reviewed stub periods to date and pro forma financials.
Along with all the information required in a Form 10, a Super 8-K must include all the exhibits required to be filed with a Form 10. As always, details determine diligence, so Along with all the information required in a Form 10
Finally, although an 8-K usually does not allow for incorporation by reference the instructions for a Super 8-K specifically allow for incorporation by reference to other filings that contain disclosure or information that must be included in the Super 8-K.
Laura Anthony, Esq.
Legal & Compliance LLC.
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