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Comprehensive approach of forms related to merger and acquisitionsx

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Comprehensive approach of forms related to merger and acquisitionsx

  1. 1. 1 Research conducted by Arthur Mboue Comprehensive Approach of Forms Related to Merger and Acquisitions Form names Description of types of events triggering SEC filings Due Dates Interpretative and filing responsibility Example of filed forms Tenders and Acquisitions SC13D  The 13D form must disclose information about the identityand background of each filingperson, number of shares, any plans,…  Identifiesall parties with voting or sellingauthority, passive investors must file 13D when their investment stake exceed5% and stay between 5% to 10% of the company’s stock  Person ‘beneficiallyowns’any registered security if he either has or shares direct or indirect power to vote, sell or determine the disposition of that security. A person is also deemed the beneficial owner of any securities that such person has the right to acquire within sixty days that means exercise of an option or conversion or exchange of another security  Section 13D filingrequirements also apply to any ‘group’ who beneficiallyowns 5% or more of a class of an issuer’s equity securities. A group is formed when two or more persons agree to act together to acquire, hold, vote, or dispose securities.  This includesintent to exercise some control over it including an attempted hostile takeover  An acquisition is not limited to a purchase  The formation of a group may result in an acquisition of the securities even if no purchase occurred Due within 10 days after acquisition (i.e the trade date rather than the settlement date) Bidder or new owners through acquisition (public or private), gift or heritage 13d.doc SC13G 13G form is a much abbreviated version of 13D form. It is only available for use by a limitedcategory of "persons" (such as banks, broker/dealers, and insurance companies) only when the securitieswere acquired in the ordinary course of business and not with the purpose or effect of changing or influencing the control of the target. This is an annual filingwhich must be filedby passive investors, bidder or non bidder, when their investment exceeds10%.  If the investor beginsto exert some influence or control over a company, then SC 13D must be filedinstead  Groups of qualifiedinstitutions and parents or control persons of qualifiedinstitutionsmaybe themselves qualifiedinstitutional investors Within 45 days of the end of the calendar year after 5% AND within 10 days of the end of the calendar month after 10 % (qualified Beneficial owners or Bidder through acquisition (public or private), gift or heritage aet13g.doc
  2. 2. 2 Research conducted by Arthur Mboue  A passive investor must hold lessthan 20 percent of a class of equity securities  Two types of exempt investor, persons exempt pursuant to Section 13(d)(6) and persons who acquired beneficial ownership of more than 5 percent of a class of equity securities that were not registered at the time of the acquisition but subsequently were registered, normally are not required to file Schedule 13D institution al investor) Within 10 days of the acquisition (Passive investor) Due within 45 days after the end of each calendar year (exempt investors) SC13E-3 SC 13E-3 form must be filedby certain persons engaging in "going private" transactions. The schedule must be filedby any company or an affiliate of a company who engages in a business combination, tender offer, or stock purchase that has the effect of causing a class of the company's equity securities registered under the 1934 Act (1) to be heldby fewer than 300 persons, or (2) to be de-listedfrom a securities exchange or inter-dealer quotation system. The filermust disclose detailedinformation about the transaction, including whether the filer believesthe transaction to be fair.  The rule 13e-3(g)(2) exception is not a combination of cash and stock  Bidder must file a joint Schedule 13E-3/Schedule TO where the transaction is both a tender offer and a going private transaction. It must be filedwhen the form S-4 was initiallyfiled. The bidder should file an amended schedule with a transmittal letter filedas exhibitwhen the offer does commence  Parent proposes to make the subsidiary whollyowned The 20/30 days before any purchase requireme nts do not apply. It shall be filedas soon as on the date the tender offer is first published Issuer and affiliate have obligation to comply with Rule 13e-3. Joint filingof Acquisition vehicle and the entity/person who formed it is permissible so long as each filing person individually makes the required disclosures. exhibit9910.doc
  3. 3. 3 Research conducted by Arthur Mboue through the followingsequence: (1) a tender offer for any and all of the subsidiary’s common stock, (2) file Form 15 (3) after commencement, file a SC TO and SC 13e-3  Rule 13e-3 (g)(1) provides exception from the requirements to file SC 13e-3 for second step clean-up transactions within one year of a tender offer provided that the consideration offered in the second step is ‘at least equal to the highest consideration offered during such tender offer.  This schedule is often followedby the filingof Form 15 (to terminate registration of a class of securities) and/or Form 25 (to delist) v a r i a n t s PRE13E3 This form is one variant of the schedule 13E3 filedas part of proxy materials, initial statement- preliminary form PRE13E3/ A This form is an amendment to PRE13E3 DEF13E3 This form is filedas a part of proxy materials, definitive materials DEF13E3/ A This form is an amendment to DEF13E3 SC13E-4F This schedule may be used by a Canadian foreign private issuer that makes an issuer tender offer for its own equity shares. U.S. citizens must hold less than 40 percent of the class of shares subject to the tender offer. The calculation of securities held by U.S holders shall be made as of the end of the issuer’s last quarter or, if such quarter terminated within 60 days of the filingdate, as the end of the issuer’s preceding quarter. It serves as a wraparound for the relevant Canadian disclosure documents. The Canadian issuer must comply with relevant Canadian tender offer regulations and Rule 13e-4(g) under the exchange Act. . Must be filedwith the SEC in electronic format on the EDGAR within one business day of being filed in Canada The Canadian company is accountable for this filing Schedule 13e-4F.d SC 14D-1F Schedule 14 D-1F may be used by a Canadian companies if: 1. The issuer is incorporated or organized under the laws of Canada or any Canadian province or territory and qualifiesfor MJDS; 2. The issuer is making a cash tender or exchange offer to US holder upon terms and condition not less favorable than those offered to any other holder of the subject securities 3. The target is not an ‘investmentcompany’ withinthe meaning of the ICA of 1940 4. Have been subject to the continuous disclosure reporting Must be filedwith the SEC in electronic format on the EDGAR system within one business day of 3rd party (Canadian Companies) is accountable EX-1-14D-1F.do
  4. 4. 4 Research conducted by Arthur Mboue requirements for the preceding 12 calendar months with a Canadian securities regulatory authority and is in compliance with those reporting requirements 5. Have a public float of outstanding equitysecurities held by persons other than its affiliatesof US$ 75 millionor more 6. Less than 40 % of the class of such issuer’s securities outstanding that is the subject of the tender offer is held by U.S holders. The calculation of securities held by US holders shall be made as of the end of the issuer’s last quarter or if such quarter terminated within 60 days of the filingdate, as of the end of the issuer’s preceding quarter. 7. Certain cross border cash tender and exchange offers for securities of Canadian targets are eligible toreport in accordance only with Canadian disclosure requirements being filed in Canada SC14D-9 This schedule must be filedwith the Commission when an interested party (bidder or acquiror) or its representative makes a solicitation or offer to the target. The target makes this filingwith a purpose to inform its shareholders about the offer. The target must file the solicitation/recommendation statement on Schedule 14D-9 with the SEC and deliveryit to its shareholders and the bidder. Rule 14e-2 provides that the target must state the position of the company after a board meeting. Optional positions to the company include: 1. Recommends acceptance 2. Rejects the offer 3. Express no opinion and is remaining neutral toward the offer; or 4. Is unable to take a position with respect to the offer It must also state if the company or some of its executives will tender their own shares. Exhibits include disclosure materials, documents regarding conflicts of interest and instructions to solicitors  A variant of this form SC 14D9C is filedwhen the communication is made prior to the commencement of the tender offer Due within 10 business days of the commence ment of the offer Current owners (target) of the shares or its representative SC 14D9.doc SC14D-9F Schedule 14D-9F may be used by a Canadian foreign private issuer or by any of its directors or officers when the issuer is the subject of a tender offer filedon Schedule 14D-1F. The schedule is used to respond to tender offers. The target (Canadian company) must file this solicitation and recommendation statement on Schedule 14D-9F with the SEC and deliveryit to its US shareholders (lessthan 40 Due within 15 business days of the commence ment of the offer Canadian companies (target) or its representative Exhibit 1.1, 14D-9F.doc
  5. 5. 5 Research conducted by Arthur Mboue percent) and the bidder. It must state one of the 4 positions of company about the proposed tender offer. It must also state if the company or some of its executiveswill tender their own shares. When the target is the U.S company, the tender offer rules under the Exchange Act will apply. If the only consideration offered in the tender offer is cash and the acquirer is either US or Canadian, the exemptionto the U.S tender offer rules does apply so long as the target is Canadian and less than 40% U.S owned. If the target is a FPI, the acquirer has the option of excludingthe U.S security holders of the target. That means if it is 10% US owned, it is exemptfrom the rules; if it is between 10 and 40 % U.S owned, the rules apply to them with exception of the full dissemination rules. Remember MJDS companies are special FPI with special offering rules, these qualifiedCanadian issuers are permitted to issue securities to US investors based on disclosure documents prepared under Canadian law. They 1. File the registration form with the Canadian disclosure documents to the appropriate Canadian regulatory body 2. File the same material with the SEC under cover of a ‘wrap around’ MJDS registration (with legends) 3. A registration form becomes effective immediately because SEC will rely on the review conducted by Canadian Regulators, but when does the SEC receive any ‘no objection letter’from FINRA (if applicable), I do not have that answer. Another question mark is how they deal with the fact that the Canadian shelf rules allow a final receipt to be issuedbefore the offeringprice is determined, I will find out (or one business day of being filed in Canada) SC14F1 Statement regarding changing in majority of directors pursuant to rule 14f-1 under the Exchange Act in connection with the change of control to be effectuated by the appointment of new corporate officers and board of directors. This form should be attached as Exhibit D ‘the Rule 14f-1 information statement’ in connection with the appointment of members of the Company’s board of directors contemplated by Section 4.4 no later than two Business Days after the Closing Date, and transmit the same information statement to each of the Company’s stockholders in compliance with Rule 14f-1. A least 10 days prior closing date Parent (bidder) is accountable and should file this form 2016feb10-vrdr_1 1.doc SC14C/SC 14A This SC 14 form sets forth the disclosure requirements for information statements. Generally, a company with Parent (bidder) is
  6. 6. 6 Research conducted by Arthur Mboue securities registered under Section 12 of the 1934 Act must send an information statement to every holder of the registered security who is entitledto vote on any matter for which the company is not soliciting proxies. Issuers file proxy statements on Schedule 14A. If the company chooses not to solicit proxies from its shareholders, it filesan information statement on Schedule 14C form. A preliminary Schedule 14A or 14C is filedwith the SEC, who then reviews and comments on the filing.Upon clearing comments, a definitive Schedule 14A or 14C is filedand mailed to the shareholders as of a certain record date. 10 days after filing preliminary information on Schedule 14C if no SEC comments are received, the issuer may file its definitive information statement. 1. If you are filinga Schedule 14C for pre-merger or acquisition recapitalization, you must provide all the information required by items 11, 13 and 14 of Schedule 14A 2. Detailed information about a proposed merger whether it is completed or not is found in the proxy statement on SC 14 A or the information statement on SC 14C accountable PREM14A This is a preliminary proxy statements relating to merger or acquisition. It provides security holders with sufficient information to allow them to make an informed vote of an upcoming securities holders’ meeting or to authorize a proxy to vote on their behalf. It is constructed under Section 14(a) of the SecuritiesExchange Act of 1934 with variants including PREC14A, PRES 14A and PREN14A 50 days before meeting formprem14a.do v a r i a n PREC14A Preliminary proxy statements-contested solicitations. PRES14A Preliminary proxy materials-Preliminary special meeting. PREN14A Non-management preliminary proxy statements not involvingcontested solicitations. PRE14A Preliminary proxy statement not related to contested matter or Merger and acquisition PRER14A Revised Preliminarymaterials proxy solicitingmaterials PRRN14A This is the non-management revised preliminary proxy soliciting materials for both contested solicitations and other situations.
  7. 7. 7 Research conducted by Arthur Mboue t s DEFM14A This is for definitive proxy statement relating to merger or acquisition. 40 days before meeting DEFM14A.doc DEFC14A This is for definitive proxy statement in connection with contested solicitations. DFRN14A Revised definitive proxystatement filedby non- management. DEFR14A This is the revisedproxy soliciting materials-definitive. DEFA14A Additional proxy soliciting materials-definitive. DFAN14A Additional proxy soliciting materials-definitive-filedbynon- management. DEFS14A This is for the definitive proxy statement for special meeting. Different Pre-liminary and Definitive of 14C v a r i a n t s PREC14C Preliminary information statements-contested solicitations PREM14C Preliminary information statements relating to merger or acquisition Filed10 days before any definitive Preliminary Information Statem PRES14C Preliminary information statements: preliminary special meetings PRER14C This form is to disclose revisedinformation statements DEFM14C Definitive information statement relating to merger or acquisition. Filedthe same day they are sent Definitive Information Statem DEFC14C Definitive information statement - contested solicitations. DEF14C All other definitive information statements furnished to voting holding shareholders in non-voting situations with variants including DEFM14C, DEFC14C, DEFA14C,... DEFA14C Additional information statement materials-definitive.
  8. 8. 8 Research conducted by Arthur Mboue DEFR14C Revised information statement materials - definitive. DEFS14C Definitive information statement for special meeting. Registrations S-4 This form is required to be used to register securitiesin connection with business combinations, mergers, consolidations and exchange offers. Form S-4 must comply with the item requirements contained in the instructions to Form S-4 as well as Regulations S-K, S-X and M-A. Before filingall these forms, a company counsel and SEC reporting staff should search, track and review all comments letters relating to offerings withinits industry, as well as comment letters relating to transactions that are similar in type and size. Form S-4 must state: 3. Summary of the fairness opinion in the prospectus and any pre-existingrelationship betweenthe financial advisor and the registrant that may affect the impartiality of the financial advisor 4. Background and reasons for the merger is stated in the prospectus detailing the chain of events leading up to the merger 5. File as exhibitthe board books under item 4(b) 6. Financial projections and comparisons of similar companies when making presentations to directors in connection with merger negotiations A form S-4 registration statement can be filedto convert an existingcorporation into a trust that will have the same assets and management as its predecessor. Two companies can file a joint Form S-4 for a stock for assets acquisition 20 days before issuance Issuer has responsibility for this filing EX-99.2-S-4.do F-80/8 This form is used to register securitiesin connection with business combinations, reorganization and exchange offers involvingforeign private issuers and requiring a shareholder vote. Main requirements include: 1. Incorporation: Issuer is a FPI incorporated and organized under the laws of Canada or any Canadian province or territory and qualifiesfor MJDS status 2. Reporting: for exchange offer- the issuer has been subject to the continuous disclosure reporting requirement for the preceding 12 calendar months immediatelypreceding the filingwith a Canadian securities regulatory authority and is in compliance with those reporting requirements; for business combination- each participant has been subject to the 36 months reporting history rule. Must be filedwith the SEC in electronic format on the EDGAR system within one business day of being filed in Canada Issuers and participants are responsible EX-4.1-F-80.do
  9. 9. 9 Research conducted by Arthur Mboue 3. Listing: for exchange offer-issueris listedon one of the 3 Canadian Exchanges (Montreal, Toronto and Senior board); business combination-each participant meets12 months listing requirement 4. Target (successor): for exchange- issuer must meet the incorporation test with US holders owning less than 25 %; for business combination-each participant must meet the incorporation test with US holders owning less than 25% 5. Public Float: for exchange-issuer must meet the $75 Million or more public float test; for business combination-each participant must meet the $75 Million or more public float test 6. US holders-if the form is being used for an exchange offer, securities must be offeredto US Holders and the offer is not lessfavorable than those offered to any other holder of the subject securities 7. Form 8, Form 80 and alternatives: o Form F-80 is used where U.S holders own less than 40% of the target o Form F-8 is used where U.S holders own lessthan 25% of the target securities o The calculation of securities heldby US holders shall be made as of the end of the issuer’s last quarter or if such quarter terminated within 60 days of the filingdate, as of the end of the issuer’s preceding quarter. o In the event that Forms F-8 and F-80 are not available, there is a possibilityfor Form F-10 or F- 9 use 8. No reconciliation to US GAAP is required 9. Business combination (including takeovers) -Form F-8 and form F-80 may be used for businesscombination as long as less than 40% of the securities to be issued by the successor corporation will be receivedby U.S holders. Prospectuses 424b5 This form is used when disclosing Canadian securities filings This prospectus is fileda day after Canadian filing e424b5.doc 425 This form is filedto disclose all correspondences and communication relating to a proposed merger, acquisition or other business combination transactions. It is also used to disclose all related communication including press release, roadshow presentation or similar announcement. It may be Filedwith the SEC on the day of the use The issuer is responsible From 8-K, 425.d
  10. 10. 10 Research conducted by Arthur Mboue filedseparately or as part of Form 8-K N-14 This form is used as a registration of the securitiesof management investment and business development companies to be used in business combinations under the Investment Management Act of 1940 60 days after The company is responsible Opinion and Cons of Ropes & G Notification of Late Filing 12b-25 This form is used as a notification of late filing by a reporting company. The determination of inability of filing periodic report when it is due will trigger the filing of this form. It is entitled to relief, but must file the required report within five calendar days (for a form 10-Q) or within fifteen calendar days (for a form 10-K, 11K, or N-SAR) No later than one day after the due date The company is responsible Notification of La Filing.doc Tender Offer Registration SC TO-T It is a tender offer statement by 3rd party. The 3rd party is required to file one of 3 variants of the schedule TO form called SC TO-T with “T’ standing for ‘3rd party’. It is the 3rd party that is tendering this offer  SC TO-T can be ‘unsolicited’ meaning the target company’s board is not consulted and shareholders are appealed to directly Must be filedthe day of the offer The reporting company is responsible sentiosctot252016 -TO-T.doc SC TO-C When the offer will result in a party owning more than 5% of a class of the target company’s securities, then the acquirer must file a schedule TO form. One of the 3 variants of SC TO form is SC TO-C with ‘C’ standing for a written or oral communication made by the bidder to the issuer or 3rd party about a proposed or planned offer.  It may be filedseparately or as a part of a Form 8-K. Regardless of what company makes the filing,the document will be indexedunder the target or subject company Promptly filed The 3rd party is responsible EX-99.1-SC-TO-C c SC TO-I It is a tender offer statement by issuer. The issuer is required to file one of 3 variants of the schedule TO form called SC TO-I with ‘I’ standing for issuer. An issuer tender offer is also called self- tender offer. This form is required to be used to disclose a company repurchase of its own shares.  This transaction, if completed, often results in the company recapitalizing itself or even going private Must be filedon the day of the offer The issuer is responsible mrcsctoinoo21820 -SC TO-I.doc TA-1 This form is used to apply for registration as a transfer agent or to amend such registration. It provides information on the company’s activitiesand operations. It becomes effective after 30 dates Before to perform any duty The agent is responsible SEC FORM TA-1.d
  11. 11. 11 Research conducted by Arthur Mboue TA-2 This form is used by transfer agent registered pursuant to section 17 A of the SEA of 1934 for the annual report of the transfer agent activities. It becomes effective after 30 days. Before to perform any duty The agent is responsible SEC FORM TA-2.d Periodic report 10-Q If a form 8-K triggering events occurs within 4 business days before the company’s filingof a form 10-Q, merger, acquisition and other material related consolidation will be disclosed under item 5 part II-Other information (item 407 c3 of Regulation S-K)  Also, its quarterly MD&A can disclose: o Any preliminary merger negotiations o Merger and acquisition completion o Exit costs and employees termination related to merger and acquisitions If event occurs within 4 days before the company filingof form 10-Q Acquirer is accountable for this filing 10Q-9.30.14.pd Current Filing 8-K Item 1.0, entry into material definitive agreement that provides for rights or obligations material to and enforceable by or against the agreement (any material amendment agreement)  Must indicate the date of the agreement, describe the parties, material terms and condition of agreement  It can be updated with 8-K/A or 10-Q or 10-K with a required exhibitof the material definitive agreement or amendment  It is protected by rule 10-b/safe harbor  Delinquent filingof this item will not impact the company S-3 eligibility Item 1.02 termination of material definitive agreement can also be used to announce an aborted merger and acquisition Item 2.01 completion of acquisition or dispositionof significant amounts of assets (other than ordinary course of business) will be disclosedhere  Completion by company or majority owned subsidiary of acquisition or disposition of significant amount of assets otherwise than in ordinary course of business  An indefinite closing of a portion of the company’s facilities,coupled with a write-down of its assets in excess of 10% constitutes an ‘other disposition’  Excluded from this trigger:  Transactions between any person and any wholly owned Due normally 4 days after the events Acquirer is accountable for its filings From 8-K, 425.d
  12. 12. 12 Research conducted by Arthur Mboue subsidiaries or between wholly owned subsidiaries  Redemption or other acquisition of securities to the public or sale or other dispositionof securities to the public by the company of such securities or by a wholly owned subsidiary of that company  Purchase by a reporting company of a minority stock interest in a business from an independent 3rd party  This item is not 10b/Rule 10b-5, safe harbor guaranteed  Failure of furnishing this item will not result in ineligibility of S-3 privilege  This item requires a disclosure of the merger plan as exhibit Notification forms CB Notification filedin connection with certain tender offers, business combination and rights of offerings in which the subject company is a foreign private issuer of which less than 10% of its securities are held by U.S shareholders (citizens and residents) No later than the next business day after the disclosure Issuer is responsible ex99_4-CB.doc SH This weeklyform notice is used by institutional investment managers to report short sale of a Section 13(d) security end of the week Investment company Correspondence Submission types (letters) Corresp A correspondence can be sent as a document submission type or can be sent as a separate submission, correspondence will be posted within15 days like any SEC staff comment without special treatment approval. It is a response from the company related to SEC staff letters about the company past disclosure review. The company has 10 days to respond ( Plus extension) Company must take it seriously corresp.doc UPLOAD It is the SEC staff comment from the SEC related to the company past disclosure Due any time the SEC staff completes their review SEC upload.pdf No further comment Completion of the reviewletter, it does come with a warning, read it very well. review completio n SEC and company
  13. 13. 13 Research conducted by Arthur Mboue Note: Some filingsmay include the followingin their form type. A Amendments; Pre-effective amendments. NT Notice of late filing POS Post-effective amendments. POSAMI Post-effective amendments, filingssubmitted under the 1940 act only. POSM Post-effective amendments. SB Optional form for small business issuers under section 13 or 15(d). SP15d-2 Special financial report pursuant to Rule 15d-2. T Transition reports pursuant to rule 13a-10 or 15d-10. PRE/PR Preliminary DEF/DF Definitive. 497 Definitive materials. 497J Certificate of no change in definitive materials. No action letter If a company intendsto exclude a shareholder proposal from its proxy materials on procedural or substantive grounds, it must submit its reasons for doing so to the SEC, with a copy sent simultaneously to the shareholders proponent. If the company plans any departure from the rules, it can also make this request to the SEC staff. The submission is referred to as a ‘no action letter’ meaning no legal action will be taken against you. No later than 80 calendar days prior filing The company is responsible ma-brokers-0131 pdf

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