D.10 Requirements Related to the Super Form 8-K | DART – Deloitte Accounting Research Tool

The Super Form 8-K must be filed no later than four business days after the close of a transaction. The 71-day extension typically available for an acquired business does not apply to SPAC transactions. The Super Form 8-K must describe the completion of the transaction (Form 8-K, Item 2.01); the change in the control of the SPAC, if applicable (Form 8-K, Item 5.01); the change in the SPAC’s shell company status (Form 8-K, Item 5.06); and a change in the fiscal year-end, if applicable (Form 8-K, Item 5.03). Because the target’s auditor generally becomes the auditor of the combined entity after the transaction, the Super Form 8-K may describe a change in the certifying accountant as well (Form 8-K, Item 4.01). Similarly, if there has been a change in the target company’s auditor in the two most recent fiscal years or subsequent interim period, such a change must also be disclosed. As a result, in certain circumstances, multiple changes in auditor may be reported in the Super Form 8-K (e.g., a change in auditor of the target company within the last two years and a change in auditor of the registrant [to the target auditor] upon the close of the transaction). In addition, the Super Form 8-K must include all the information that would be required if the target was filing an initial registration statement on Form 10 (Form 8-K, Item 9.01).

The form and content of the financial information required in a Super Form 8-K are largely consistent with the information provided in a proxy/registration statement. However, certain disclosures must be updated to reflect information as of the Super Form 8-K filing date. For example, if material, the pro forma financial information generally needs to be updated to reflect the actual results of the transaction and any related financing, rather than the minimum and maximum scenarios that may have been presented. Further, entities should evaluate the number of annual periods and the age of the financial statements included in the Super Form 8-K because more current financial statements may be required. See Section D.3.2 for more information.

In addition, to avoid a gap or lapse in the target’s financial statement periods after a transaction, the combined company may need to amend its Super 8-K to provide updated financial statements (and MD&A) of the target. For example, if the transaction closes soon after the target’s fiscal quarter or year-end, the Super Form 8-K generally will not include the target’s financial statements for the most recently completed period. In such a case, the combined company will need to amend its Super Form 8-K to provide the recently completed annual or interim period. The due date of the amendment depends on the reporting requirements of the SPAC (i.e., its filing status). For example, if the SPAC is a nonaccelerated filer, the Form 8-K amendment would be due within 45 days of the end of a quarter and within 90 days of the end of a fiscal year.

Example D-3

SPACA, a nonaccelerated filer, and a target both have a calendar year-end. The transaction closes on November 2, 20X4.

SPAC A is required to file its Form 10-Q for the quarter ended September 30, 20X4, on or before November 14, 20X4. Since the transaction closed after September 30, 20X4, the Form 10-Q will include A’s historical financial statements; the transaction will be disclosed as a subsequent event. The Form 10-Q will not reflect the target’s financial statements.

Withinfour businessdays of the close of the transaction, A must file the Super Form 8-K with the target’s (1) audited financial statements for the two or three years ended December 20X3 (see Section D.3.1) and (2) unaudited financial statements for the interim periods ended June 30, 20X4, and June 30, 20X3. On or before November 14, 20X4, the Super Form 8-K must be amended to include unaudited financial statements for the interim periods ended September 30, 20X4, and September 30, 20X3.

Example D-4

Assume the same facts as in Example D-3, except that the transaction closes on February 2, 20X5.

SPAC A is required to file its Form 10-K for the year ended December 31, 20X4, on or before March 31, 20X5. Since the transaction closed after December 31, 20X4, the Form 10-K will include A’s historical financial statements; the transaction will be disclosed as a subsequent event. The Form 10-K will not reflect the target’s financial statements.

Within four business days of the close of the transaction, A must file the Super Form 8-K with the target’s (1) audited financial statements for the two or three years ended December 20X3 (see Section D.3.1) and (2) unaudited financial statements for the interim periods ended September 30, 20X4, and September 30, 20X3. On or before March 31, 20X5, the Super Form 8-K must be amended to include audited financial statements for the two or three years ended December 31, 20X4.

Connecting the Dots

Target companies must ensure that updated quarterly or annual financial statements are available in a timely fashion (1) during the proxy/registration statement process, (2) through the completion of the transaction, and (3) on an ongoing basis thereafter. The target, as a predecessor to the SPAC, may not “skip” a reporting period between the Super Form 8-K and the first periodic report on Form 10-Q or Form 10-K that reflects the transaction.