Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 3-05 -- Financial Statements of Businesses Acquired or to Be Acquired

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1. Financial statements required.
   
   
   1. Financial statements prepared and audited in accordance with this regulation should be furnished for the periods specified in paragraph (b) below if any of the following conditions exist:
      
      
      1. Consummation of a business combination accounted for as a purchase has occurred or is probable (for purposes of this rule, the term purchase encompasses the purchase of an interest in a business accounted for by the equity method); or
         
         
      2. Consummation of a business combination to be accounted for as a pooling of interests is probable.
         
         
   2. For purposes of determining whether the provisions of this rule apply, the determination of whether a business has been acquired should be made in accordance with the guidance set forth in Rule 11-01(d).
      
      
   3. Acquisitions of a group of related businesses that are probable or that have occurred subsequent to the latest fiscal year-end for which audited financial statements of the registrant have been filed shall be treated under this section as if they are a single business combination. The required financial statements of related businesses may be presented on a combined basis for any periods they are under common control or management. For purposes of this section, businesses shall be deemed to be related if:
      
      
      1. They are under common control or management;
         
         
      2. The acquisition of one business is conditional on the acquisition of each other business; or
         
         
      3. Each acquisition is conditioned on a single common event.
         
         
   4. This rule shall not apply to a business which is totally held by the registrant prior to consummation of the transaction.
      
      
2. Periods to be presented.
   
   
   1. If securities are being registered to be offered to the security holders of the business to be acquired, the financial statements specified in Rule 3-01 and Rule 3-02 shall be furnished for the business to be acquired, except as provided otherwise for filings on Form N-14, S-4 or F-4. The financial statements covering fiscal years shall be audited except as provided in Item 14 of Schedule 14A with respect to certain proxy statements or in registration statements filed on Forms N-14, S-4 or F-4.
      
      
   2. In all cases not specified in paragraph (b)(1) of this section, financial statements of the business acquired or to be acquired shall be filed for the periods specified in this paragraph (b)(2) or such shorter period as the business has been in existence. The periods for which such financial statements are to be filed shall be determined using the conditions specified in the definition of significant subsidiary in Rule 1-02(w) as follows:
      
      
      1. If none of the conditions exceeds 20 percent, financial statements are not required. However, if the aggregate impact of the individually insignificant businesses acquired since the date of the most recent audited balance sheet filed for the registrant exceeds 50%, financial statements covering at least the substantial majority of the businesses acquired shall be furnished. Such financial statements shall be for at least the most recent fiscal year and any interim periods specified in Rule 3-01 and Rule 3-02.
         
         
      2. If any of the conditions exceeds 20 percent, but none exceed 40 percent, financial statements shall be furnished for at least the most recent fiscal year and any interim periods specified in Rule 3-01 and Rule 3-02.
         
         
      3. If any of the conditions exceeds 40 percent, but none exceed 50 percent, financial statements shall be furnished for at least the two most recent fiscal years and any interim periods specified in Rule 3-01 and Rule 3-02.
         
         
      4. If any of the conditions exceed 50 percent, the full financial statements specified in Rules 210.3-01 and 210.3-02 shall be furnished. However, financial statements for the earliest of the three fiscal years required may be omitted if net revenues reported by the acquired business in its most recent fiscal year are less than $50 million.
         
         
   3. The determination shall be made by comparing the most recent annual financial statements of each such business, or group of related businesses on a combined basis, to the registrant's most recent annual consolidated financial statements filed at or prior to the date of acquisition. However, if the registrant made a significant acquisition subsequent to the latest fiscal year-end and filed a report on Form 8-K which included audited financial statements of such acquired business for the periods required by this section and the pro forma financial information required by Rule 11, such determination may be made by using pro forma amounts for the latest fiscal year in the report on Form 8-K rather than by using the historical amounts of the registrant. The tests may not be made by "annualizing" data.
      
      
   4. Financial statements required for the periods specified in paragraph (b)(2) of this section may be omitted to the extent specified as follows:
      
      
      1. Registration statements not subject to the provisions of Rule 419 of this chapter (Regulation C) and proxy statements need not include separate financial statements of the acquired or to be acquired business if it does not exceed any of the conditions of significance in the definition of significant subsidiary in Rule 1-02 at the 50 percent level, and either:
         
         
         1. The consummation of the acquisition has not yet occurred; or
            
            
         2. The date of the final prospectus or prospectus supplement relating to an offering as filed with the Commission pursuant to Rule 424(b), or mailing date in the case of a proxy statement, is no more than 74 days after consummation of the business combination, and the financial statements have not previously been filed by the registrant.
            
            
      2. An issuer, other than a foreign private issuer required to file reports on Form 6-K, that omits from its initial registration statement financial statements of a recently consummated business combination pursuant to paragraph (b)(4)(i) of this section shall furnish those financial statements and any pro forma information specified by Article 11 of Regulation S-X under cover of Form 8-K no later than 75 days after consummation of the acquisition.
         
         
      3. Separate financial statements of the acquired business need not be presented once the operating results of the acquired business have been reflected in the audited consolidated financial statements of the registrant for a complete fiscal year unless such financial statements have not been previously filed or unless the acquired business is of such significance to the registrant that omission of such financial statements would materially impair an investor's ability to understand the historical financial results of the registrant. For example, if, at the date of acquisition, the acquired business met at least one of the conditions in the definition of significant subsidiary in Rule 1-02 at the 80 percent level, the income statements of the acquired business should normally continue to be furnished for such periods prior to the purchase as may be necessary when added to the time for which audited income statements after the purchase are filed to cover the equivalent of the period specified in Rule 3-02.
         
         
      4. A separate audited balance sheet of the acquired business is not required when the registrant's most recent audited balance sheet required by Rule 3-01 is for a date after the date the acquisition was consummated.
         
         
3. Financial statements of foreign business. If the business acquired or to be acquired is a foreign business, financial statements of the business meeting the requirements of Item 17 of Form 20-F will satisfy this section.
   
   

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