SEC Guidance on Reverse Merger reporting

Posted on September 19th, 2011

The SEC’s Corporate Finance department has issued guidance on Super 8-K filings that must follow a merger. The guidance is online here.

Some companies who acquire an asset, or combination of assets and liabilities, would like to avoid having to file the Super 8-K. They seem more put off by the tight time frame – it’s due within four days of the acquisition – than by the significant volume of information required.

However, ASC 805-10-25 describes GAAP’s answer to “Did what we just do constitute an acquisition?”

The heart of the matter, for accountants, revolves around whether the assets/liabilities assumed constitute a business, defined as “An integrated set of activities and assets that is capable of being conducted and managed for the purpose of providing a return in the form of dividends, lower costs, or other economic benefits directly to investors or other owners, members, or participants.”

For SEC purposes, the state of the acquirer is just as important. The new guidance includes this:

Item 2.01 of Form 8-K generally requires a company to provide specified disclosure after it has acquired or disposed of a significant amount of assets other than in the ordinary course of business. If that company was a shell company, as defined in Rule 12b-2 under the Exchange Act, immediately before the transaction, it must include the information that would be required if it were filing a Form 10 under the Exchange Act in its Form 8-K. 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. Where a company’s reverse merger or similar transaction fits within the scope of Instruction 2, we remind it of the Item 2.01 disclosure requirements.

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