Comprehensive approach of forms related to merger and acquisitionsx

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 identity and background of each filing person, number of shares, any plans,…

Identifies all parties with voting or selling authority, passive investors must file 13D when their investment stake exceed 5% and stay between 5% to 10% of the company’s stock

Person ‘beneficially owns’ 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 filing requirements also apply to any ‘group’ who beneficially owns 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 includes intent 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

SC13G 13G form is a much abbreviated version of 13D form. It is only available for use by a limited category of "persons" (such as banks, broker/dealers, and insurance companies) only when the securities were 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 filing which must be filed by passive investors, bidder or non bidder, when their investment exceeds 10%.

If the investor begins to exert some influence or control over a company, then SC 13D must be filed instead

Groups of qualified institutions and parents or control

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 %

Beneficial owners or Bidder through acquisition (public or private), gift or heritage

1 Research conducted by Arthur Mboue

persons of qualified institutions maybe themselves qualified institutional investors

A passive investor must hold less than 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

(qualified institutional 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 filed by certain persons engaging in "going private" transactions. The schedule must be filed by 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 held by fewer than 300 persons, or (2) to be de-listed from a securities exchange or inter-dealer quotation system. The filer must disclose detailed information about the transaction, including whether the filer believes the 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 filed when the form S-4 was initially filed. The bidder should file an amended schedule with a transmittal letter filed as exhibit when the offer does commence

Parent proposes to make the subsidiary wholly owned through the following sequence: (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

The 20/30 days before any purchase requirements do not apply. It shall be filed as soon as on the date the tender offer is first published

Issuer and affiliate have obligation to comply with Rule 13e-3. Joint filing of Acquisition vehicle and the entity/person who formed it is permissible so long as each filing person individually makes the required disclosures.


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 followed by the filing of Form 15 (to terminate registration of a class of securities) and/or Form 25 (to delist)

var

iant

s

PRE13E3 This form is one variant of the schedule 13E3 filed as part of proxy materials, initial statement- preliminary form

PRE13E3/A

This form is an amendment to PRE13E3

DEF13E3 This form is filed as 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 filing date, 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 filed with 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

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 qualifies for 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 ‘investment company’ within the meaning of the ICA of 1940

4. Have been subject to the continuous disclosure reporting 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 equity securities held by persons other than its affiliates of US$ 75 million or

Must be filed with the SEC in electronic format on the EDGAR system within one business day of being filed in Canada

3rd party (Canadian Companies) is accountable


more6. 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 filing date, 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 to report in accordance only with Canadian disclosure requirements

SC14D-9 This schedule must be filed with the Commission when an interested party (bidder or acquiror) or its representative makes a solicitation or offer to the target. The target makes this filing with 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 delivery it 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 acceptance2. Rejects the offer3. Express no opinion and is remaining neutral toward

the offer; or4. 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 filed when the communication is made prior to the commencement of the tender offer

Due within 10 business days of the commencement of the offer

Current owners (target) of the shares or its representative

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 filed on 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 delivery it to its US shareholders (less than 40 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 executives will tender their own shares.

Due within 15 business days of the commencement of the offer (or one business day of being filed in Canada)

Canadian companies (target) or its representative


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 exemption to 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 excluding the U.S security holders of the target. That means if it is 10% US owned, it is exempt from 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 qualified Canadian 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 issued before the offering price is determined, I will find out

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

SC14C/SC 14A This SC 14 form sets forth the disclosure requirements for information statements. Generally, a company with securities registered under Section 12 of the 1934 Act must send an information statement to every holder of the registered security who is entitled to 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

Parent (bidder) is accountable


solicit proxies from its shareholders, it files an information statement on Schedule 14C form. A preliminary Schedule 14A or 14C is filed with the SEC, who then reviews and comments on the filing. Upon clearing comments, a definitive Schedule 14A or 14C is filed and 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 filing a 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

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 Securities Exchange Act of 1934 with variants including PREC14A, PRES 14A and PREN14A

50 days before meeting

variants

PREC14A Preliminary proxy statements-contested solicitations.

PRES14A Preliminary proxy materials-Preliminary special meeting.

PREN14A Non-management preliminary proxy statements not involving contested solicitations.

PRE14A Preliminary proxy statement not related to contested matter or Merger and acquisition

PRER14A Revised Preliminary materials proxy soliciting materials

PRRN14A This is the non-management revised preliminary proxy soliciting materials for both contested solicitations and other situations.

DEFM14A This is for definitive proxy statement relating to merger or acquisition.

40 days before meeting

DEFC14A This is for definitive proxy statement in connection with


contested solicitations.

DFRN14A Revised definitive proxy statement filed by non-management.

DEFR14A This is the revised proxy soliciting materials-definitive.

DEFA14A Additional proxy soliciting materials-definitive.

DFAN14A Additional proxy soliciting materials-definitive-filed by non-management.

DEFS14A This is for the definitive proxy statement for special meeting.

Different Pre-liminary and Definitive of 14C

variants

PREC14C Preliminary information statements-contested solicitations

PREM14C Preliminary information statements relating to merger or acquisition

Filed 10 days before any definitive

PRES14C Preliminary information statements: preliminary special meetings

PRER14C This form is to disclose revised information statements

DEFM14C Definitive information statement relating to merger or acquisition.

Filed the same day they are sent

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.

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 securities in 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 filing all these forms, a company counsel and SEC reporting staff should search, track and review all comments letters relating to offerings within its 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-existing relationship between the 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 exhibit the 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 filed to convert an existing corporation 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

F-80/8 This form is used to register securities in connection with business combinations, reorganization and exchange offers involving foreign 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 qualifies for MJDS status

2. Reporting : for exchange offer- the issuer has been subject to the continuous disclosure reporting requirement for the preceding 12 calendar months immediately preceding the filing with 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.

3. Listing : for exchange offer-issuer is listed on 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

Must be filed with the SEC in electronic format on the EDGAR system within one business day of being filed in Canada

Issuers and participants are responsible


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 offered to US Holders and the offer is not less favorable 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 targeto Form F-8 is used where U.S holders own less than

25% of the target securitieso 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 filing date, 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 possibility for Form F-10 or F-9 use

8. No reconciliation to US GAAP is required9. Business combination (including takeovers) -Form F-8

and form F-80 may be used for business combination as long as less than 40% of the securities to be issued by the successor corporation will be received by U.S holders.

Prospectuses

424b5 This form is used when disclosing Canadian securities filings This prospectus is filed a day after Canadian filing

425 This form is filed to 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 filed separately or as part of Form 8-K

Filed with the SEC on the day of the use

The issuer is responsible


N-14 This form is used as a registration of the securities of 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

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


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 filed the day of the offer

The reporting company is responsible

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 filed separately or as a part of a Form 8-K. Regardless of what company makes the filing, the document will be indexed under the target or subject company

Promptly filed

The 3rd party is responsible

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 filed on the day of the offer

The issuer is responsible

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 activities and operations. It becomes effective after 30 dates

Before to perform any duty

The agent is responsible


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

Periodic report

10-Q If a form 8-K triggering events occurs within 4 business days before the company’s filing of 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 negotiationso Merger and acquisition completiono Exit costs and employees termination related to

merger and acquisitions

If event occurs within 4 days before the company filing of form 10-Q

Acquirer is accountable for this filing

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 exhibit of the material definitive agreement or amendment

It is protected by rule 10-b/safe harbor Delinquent filing of this item will not impact the company

S-3 eligibilityItem 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 disposition of significant amounts of assets (other than ordinary course of business) will be disclosed here

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

subsidiaries or between wholly owned subsidiaries Redemption or other acquisition of securities to the public

Due normally 4 days after the events

Acquirer is accountable for its filings


or sale or other disposition of 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

exhibitNotification forms

CB Notification filed in 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

SH This weekly form 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 within 15 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

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

No further comment

Completion of the review letter, it does come with a warning, read it very well.

review completion

SEC and company


No action letter

If a company intends to 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


Note: Some filings may include the following in their form type.

A Amendments; Pre-effective amendments.

NT Notice of late filing

POS Post-effective amendments.

POSAMI Post-effective amendments, filings submitted 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.


Comprehensive approach of forms related to merger and acquisitionsx

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Transcript of Comprehensive approach of forms related to merger and acquisitionsx