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Message: What if the settlement was not material at the time
First of all...Merry Christmas to everyone!
Please read the questions and answers below regarding the filing of the SEC 8K form. Is it possible that the settlement agreement was structured in such a way as to be triggered by an event such as a USPTO ruling? For example, what if the J's said "we agree to give you X amount of money if the outcome of the USPTO re-exam is in your favor. If, however, they issue a non final rejection, we will give you part of X until such time that your appeal is completed and your patents are validated, then you get the remainder of X (or not).
It would seem to me that a settlement involving large somes of money would be a material event outside of the normal course of business and would require and 8K filing within a certain period of time. The fact that it hasn't been filed yet makes me wonder why. Comments from the accountants and legal experts would be appreciated.
Question 1
Q: If a triggering event specified in one of the items of Form 8-K occurs within 4 business days before a registrant's filing of a periodic report, may the registrant disclose the event in its periodic report rather than a separate Form 8-K? If so, under what item should the event be disclosed? Revised Item 5 of Part II of Forms 10-Q and 10-QSB and Item 9B of Form 10-K and Item 8B of Form 10-KSB appear to be limited to events that were required to be disclosed during the period covered by those reports. A: Yes, a triggering event occurring within 4 business days before the registrant's filing of a periodic report may be disclosed in that periodic report, except for filings required to be made under Item 4.01, Changes in Registrant's Certifying Accountant and Item 4.02, Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review. The registrant may disclose triggering events, other than Items 4.01 and 4.02 events, on the periodic report under Revised Item 5 of Part II of Forms 10-Q and 10-QSB and Item 9B of Form 10-K and Item 8B of Form 10-KSB, as applicable. All Item 4.01 and Item 4.02 events must be reported on Form 8-K. Of course, amendments to previously filed Forms 8-K must be filed on on a Form 8-K/A.Question 3
Q: If an agreement that was not material at the time the registrant entered into it becomes material at a later date, must the registrant file an Item 1.01 Form 8-K at the time the agreement becomes material?A: No. If an agreement becomes material to the registrant but was not material to the registrant when it entered into, or amended, the agreement, the registrant need not file a Form 8-K under Item 1.01, unless the agreement is material to the registrant at the time of an amendment to that agreement. In any event, the registrant must file the agreement as an exhibit to the periodic report relating to the reporting period in which the agreement became material if, at any time during that period, the agreement was material to the registrant. In this regard, the registrant would apply the requirements of Item 601 of Regulation S-K to determine if the agreement must be filed with the periodic report.http://www.sec.gov/divisions/corpfin... Laurie
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Dec 25, 2007 08:23AM
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