DealLawyers.com Blog

December 17, 2004

Disposition of Assets; Form 8-K;

New Item 2.01 of Form 8-K, similar to the old Form 8-K requirements, provides that when a registrant disposes of a “significant” amount of assets, the company may be required to file pro forma financial information, as required by Article 11 of Regulation S-X. We understand based on conversations we have had with staff members in the Office of the Chief Accountant at the SEC that registrants should file such pro forma financial information within four business days of consummation of the disposition transaction (unless and until the SEC provides guidance otherwise). This is a change from the old Form 8-K requirements which, as explained in the 2000 edition of the SEC’s accountant’s manual, provided a 15-day period after the disposition for registrants to amend their original Form 8-K filings to include pro forma financial information. On a side note, we understand that the staff is working on updating the SEC’s accountant’s manual which will now have a red cover instead of the yellow cover many practitioner’s are familiar with from the 2000 edition.

Federal Holidays not a “Business Day”

As a holiday reminder, practitioners and bidders engaged in year-end tender offers should note that both Friday, December 24, and December 31, 2004 are not considered “business days” for purposes of the SEC tender offer rules. Accordingly, when counting the minimum number of days in a tender offer or subsequent offering period such days would not count toward the twenty and three business day minimum periods for tender offers and subsequent offering periods, respectively.