InCapta Inc (INCT): Got this from the SEC site. Sorry for t...

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mathmanjc

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Tuesday, 03/21/2006 10:04:34 PM

Tuesday, March 21, 2006 10:04:34 PM

Got this from the SEC site. Sorry for the long post.

If we count from 3/16, tomorrow would be the deadline for an 8K.

"The SEC has adopted a final rule significantly expanding the events that trigger the requirement to file a Form 8-K. The final rule also accelerates the Form 8-K filing deadline to four business days for most of the events. The new events requiring a Form 8-K filing and the new filing deadline will take effect on August 23, 2004.

Eight New Events

The new rule adds the following eight events to those requiring a Form 8-K filing:

* 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

A company must report entry into any material definitive agreement not made in the ordinary course of business, as well as material amendments to any contract. Only agreements containing material and enforceable obligations or rights of the company must be disclosed. Nonbinding agreements, such as letters of intent, generally do not have to be disclosed under this rule until the agreement is enforceable. The SEC eliminated the requirement that the agreement be attached as an exhibit to the disclosure; however, the SEC encourages companies to submit such agreements as an exhibit when no confidential treatment is requested. Since disclosures required by this rule may overlap with other required disclosures regarding business combination transactions, the SEC amended the form with "check-the-box" provisions enabling a company to indicate the Form 8-K filing as also satisfying separate filing obligations under Rule 165, Rule 14d-2(b) and/or Rule 14a-12.

* 1.02 TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT

A company must also file a report upon the termination of a material definitive agreement not made in the ordinary course of business, unless (a) the agreement naturally expired on its stated term; or (b) the agreement terminated as a result of all parties having completed their obligations under the agreement.

* 2.03 CREATION OF DIRECT FINANCIAL OBLIGATION OR OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT

This rule requires disclosure when a company becomes a party to any material direct financial obligations. The rules define "direct financial obligation" as (a) a long-term debt obligation; (b) a capital lease obligation; (c) an operating lease obligation; or (d) a short-term debt obligation that arises other than in the ordinary course of business. If a company enters into an arrangement that creates or may give rise to direct financial obligations in connection with multiple transactions, the company must disclose the entering into of the arrangement, and disclose its material obligations as they arise or are created (including when a series of previously undisclosed individually immaterial obligations become material in the aggregate). Additionally, a company must disclose when it becomes directly or contingently liable for an obligation resulting from off-balance sheet arrangements, whether or not the company is party to the transaction or agreement creating the obligation.

* 2.04 TRIGGERING EVENTS THAT ACCELERATE OR INCREASE OBLIGATIONS

The occurrence of an event causing a material increase or acceleration of a direct financial obligation of the company also requires a Form 8-K filing. Similarly, a company must disclose the occurrence of a triggering event that materially increases or accelerates a company's obligations under an off-balance sheet arrangement.

* 2.05 COSTS ASSOCIATED WITH EXIT OR DISPOSAL ACTIVITIES

A company must file a Form 8-K, if the board of directors, a committee of the board or an authorized officer (a) commits the company to an exit or disposal plan; (b) otherwise disposes the company of long-lived assets; or (c) terminates employees under a plan of termination, under which material charges will be incurred under GAAP. The disclosure requirements track FASB Statement of Financial Accounting Standards No. 146, "Accounting for Costs Associated with Exit or Disposal Activities." A good faith estimate of the amount of the charges must be included with the disclosure. If a good faith estimate is not available at the time of filing, the company must file a statement describing the company's course of action along with the Form 8-K and make a separate filing within four business days after an estimate is available.

* 2.06 MATERIAL IMPAIRMENTS

When a company concludes that GAAP requires a material charge for impairment of one or more of its assets, such as impairment of securities or goodwill, the company must file a Form 8-K describing and estimating the impairment and the likely effect on future cash expenditures. No Form 8-K is required if the impairment results in the preparation, review or audit of financial statements as long as the plan is disclosed in an Exchange Act report for the same period.

* 3.01 NOTICE OF DELISTING OR FAILURE TO SATISFY A CONTINUED LISTING RULE OR STANDARD

A company must report any notice from the exchange (e.g., NYSE) or national securities association (NASDAQ) that contains the principal listing for the company's common equity that (a) the company does not satisfy a rule or standard for continued listing; (b) the exchange has submitted an application to delist the securities or the association has taken all necessary steps to delist the security from its automated inter-dealer quotation system; or (c) contains a public reprimand letter or similar communication indicating the company violated a rule or standard. A company must also disclose any notices it has provided to the exchange or NASDAQ that the company is aware of any material noncompliance with a rule or standard for continued listing or any action it has taken to cause the listing of a class of common equity to be withdrawn, terminated or transferred to another listing. Exceptions from disclosure exist where the security is called for redemption or is otherwise extinguished (such as upon a merger or acquisition).

* 4.02 NONRELIANCE ON PREVIOUSLY ISSUED FINANCIAL STATEMENTS OR A RELATED AUDIT

The company must file a Form 8-K if the company concludes that the previously issued financial statements should no longer be relied upon due to an error in the financial statements. A company must also disclose if the company is advised by or receives notice from its independent accountant that disclosure should be made to prevent reliance on the financial statements. Disclosure is not required for every restatement of the financial statements, but rather only where an error results in financial statements that investors should no longer rely upon.

Transferred Events

* 3.02 UNREGISTERED SALES OF EQUITY SECURITIES

The disclosure of any unregistered sales of equity securities, previously required under Forms 10-Q, 10-QSB, 10-K and 10-KSB are now requird under Form 8-K. No disclosure is required where (a) the equity securities, in the aggregate, constitute less than 1% of the outstanding securities of the same class since the company's last report; or (b) in the case of a small business issuer, the securities, in the aggregate, constitute less than 5% of the outstanding securities of the same class since the company's last report. Issuances not required under Form 8-K must still be disclosed in periodic reports.

* 3.03 MATERIAL MODIFICATIONS TO RIGHTS OF SECURITY HOLDERS

The disclosure of material modifications to the rights of the holders of any class of the company's registered securities, previously required under Forms 10-Q and 10-QSB, are now required under Form 8-K. The substance of the disclosure is the same as previously required.

Expanded Events

* 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS

The SEC significantly expanded the rules surrounding the entry and exit of directors and officers. The rule now requires disclosure of any departure of a director or principal officer and any election or appointment of a director or a principal officer. Additional disclosure is required if an executive officer of the company knows that a director resigned or refused to stand for reelection because of a disagreement with the company related to the company's operations, policies or practices. If a director issues correspondence concerning the circumstances surrounding the resignation, refusal or removal, the correspondence must be issued as an attachment. Principal officers for purposes of this filing requirement include the company's principal executive officer, president, principal financial officer, principal accounting officer, principal operating officer or any person performing similar functions.

* 5.03 AMENDMENTS TO CHARTERS OR BY-LAWS AND CHANGE IN FISCAL YEAR

Companies with registered equity securities must file a Form 8-K when it amends or restates articles of incorporation and/or By-laws. Copies of the amended or restated documents must be attached as an exhibit. Changes in fiscal year must also be reported under this item.

Unchanged Events

The other triggering events for a Form 8-K filing were renumbered but remain substantially unchanged. These events include:

* 1.03 BANKRUPTCY OR RECEIVERSHIP

This is currently Item 3 of Form 8-K.

* 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS

This is currently Item 2 of Form 8-K. Filing of financial statements and pro forma financial information, where required, will be due under Item 9.01 within 75 days after the transaction consistent with current requirements.

* 2.02 RESULTS OF OPERATIONS AND FINANCIAL CONDITION

Filings relating to earnings, releases and other events under current Item 12 of Form 8-K.

* 4.01 CHANGES IN CERTIFYING ACCOUNTANT

This is currently Item 4 of Form 8-K.

* 5.01 CHANGES IN CONTROL

This is currently Item 1 of Form 8–K.

* 5.04 TEMPORARY SUSPENSION OF TRADING UNDER EMPLOYEE BENEFIT PLANS

This is currently Item 11 of the Form 8-K.

* 5.05 AMENDMENTS OR WAIVERS RELATING TO CODE OF ETHICS

This is currently Item 10 of Form 8-K. Many companies disclose amendments or waivers relating to code of ethics on the corporate website rather than on Form 8-K.

* 7.01 REGULATION FD

This is currently Item 9 of Form 8-K.

* 8.01 OTHER EVENTS

Companies can continue to make voluntary disclosures on Form 8-K.

Accelerated Filing Deadline

Previously, a company was required to file Form 8-K within 5 business or 15 calendar days after the occurrence of a triggering event depending on the type of event. With the new rule, a company must file the Form 8-K within four business days of all events covered by the rule except for Item 7.01 (Regulation FD Disclosure) and Item 8.01 (Other Events).

Limited Safe Harbor for Failure to File

As part of the amended rule, the SEC has adopted a limited safe harbor to protect a company from liability under Exchange Act Section 10(b) and Rule 10b-5 for failure to file a timely Form 8-K. The safe harbor applies only to those events requiring management to assess materiality, including Items 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 and 4.02(a), and ends on the due date of the next periodic report. The safe harbor does not apply to enforcement under Exchange Act Sections 13(a) or 15(d), and the SEC has stated it maintains the ability to enforce any of the Form 8–K filing requirements under those sections.

The safe harbor only applies to a failure to file a report on Form 8-K. Material misstatements or omissions in a Form 8-K filing, or other filings, will continue to be subject to liability under Sections 10(b) or Rule 10b-5.

S–2 and S–3 Eligibility

Companies that fail to file a timely report required by Items 1.01, 1.02, 2.03, 2.04, 2.05, 2.06 and 4.02(a) do not lose eligibility to use Form S–2 or Form S–3 registration statements; however, the company must still file the required Form 8-K disclosure on or before the date of filing the Form S–2 or Form S–3. A company's failure to file Form 8-K pursuant to any items not listed above will cause a loss of eligibility to use Form S–2 and Form S–3.

Rule 144

Failure to file a Form 8-K does not affect the ability of holders of restricted securities or affiliates to rely on Securities Act Rule 144 to resell the company's securities.

Practical Considerations

All public companies should address the new Form 8–K filing requirements as part of their disclosure controls and procedures. Personnel with an understanding of the new triggering events and filing deadlines need to be informed of potentially reportable events. Also, since a number of the triggering events depend on materiality, the company should consider materiality standards applicable to it, including appropriate numerical thresholds.

For further information, please contact a member of the Securities Law Team. The full text of the final rule is available from the SEC online at http://www.sec.gov/rules/final/33-8400.htm. "