M&A Disclosure – Annotated Form 8-K

Public companies that participate in M&A transactions are subject to a myriad of potential disclosure obligations throughout the transaction process.  These may arise under applicable stock exchange listing rules, federal securities laws, state fiduciary duty and proxy requirements as well as antitrust law and other regulatory regimes. The federal securities laws alone may require various disclosures through an astonishingly long list of possible forms, schedules and registration statements, including, among others, Form 8-K, Form 10-K, Form 10-Q, Schedule 14A, Schedule 14C, Schedule TO, Schedule 14D-9, Schedule 13D, Schedule 13G, Schedule 13E-3, Form 3, Form 4, Form 5, Form S-1, Form S-3, Form S-4 and, of course, several types of prospectuses.

Today, we’ll address the most common of these disclosure obligations: those arising under the Form 8-K Current Report. This Form is used to make prompt disclosure of specified material events or circumstances affecting issuers of securities registered under the Securities Exchange Act of 1934. It is generally required to be filed or furnished within four business days of the occurrence of the triggering event or circumstance. In the M&A context, these may include any or all of the following:

• signing a material transaction agreement (Item 1.01),
• terminating a transaction agreement (Item 1.02),
• closing the deal (Item 2.01),
• borrowing money to finance the transaction (Item 2.03),
• incurring costs in connection with selling assets or subsidiaries (Item 2.05),
• delisting from a stock exchange at closing (Item 3.01),
• issuing unregistered shares as consideration (Item 3.02),
• adopting charter or bylaws amendments (Items 3.03 and 5.03),
• experiencing a change of control (Item 5.01),
• departure of directors and officers (Item 5.02),
• holding a stockholder meeting to approve the transaction (Item 5.07) and
• making selective disclosures of material information (Item 7.01).

For those without a great deal of experience with these requirements, navigating them may be intimidating if not impossible. Frankly, complying with the requirements of Form 8-K is tricky even for those of us who have been doing it for years. Not only must one comply with the facial requirements of the Form and its instructions, the Securities and Exchange Commission (SEC) has issued a patchwork of nigh-inscrutable supplemental guidance and requirements in the form of Exchange Act and Securities Act Rules, adopting releases, Compliance and Disclosure Interpretations, telephone interpretations, no-action letters, informal guidance and the Financial Reporting Manual.

Frustrated by this state of affairs, I created a unified source for nearly all SEC Rules and guidance applicable to Form 8-K.  I call it The Ultimate Annotated Form 8-K.  It includes references (and hyperlinks) to all Rules and guidance needed to comply with Form 8-K’s requirements on an Item-by-Item basis. I guaranty it will make your Form 8-K disclosure compliance much easier in the future.  Let me know what you think!

The Ultimate Annotated Current Report on Form 8-K

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