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IFLR. JOBS Act Quick Start A brief overview of the JOBS Act 2014 Update. IFLR JOBS Act Quick Start: A brief overview of the JOBS Act 2014 Update
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1 IFLR JOBS Act Quick Start: A brief overview of the JOBS Act 2014 Update IFLR international Financial Law Review JOBS Act Quick Start A brief overview of the JOBS Act 2014 Update Ze -ev D Eiger Nilene R Evans David M Lynn Anna T Pinedo
2 About the authors Ze -ev D Eiger is a partner in the Capital Markets Group of the New York office of Morrison & Foerster. He also serves as co-head of Morrison & Foerster s Israel Desk. Mr Eiger s practice focuses on securities and other corporate transactions for both foreign and domestic companies. He represents issuers, investment banks/financial intermediaries, and investors in financing transactions, including publicofferings and private placements of equity and debt securities. Mr Eiger also works with financial institution clients in the equity derivative markets, focusing on designing and structuring new products and assisting with offerings of equity-linked debt securities. He also represents foreign private issuers in connection with securities offerings in the United States and the Euro markets, and financial institutions in connection with domestic and international offerings of debt securities and medium-term note programmes. Nilene R Evans is of counsel in the Capital Markets Group of the New York office of Morrison & Foerster. She counsels domestic and foreign, public and privately-held companies, advising them on issues ranging from securities offerings, mergers, acquisitions and dispositions to ongoing disclosure and compliance obligations and general strategic planning. Ms Evans has extensive experience acting as counsel for underwriters and issuers in initial and subsequent public and private equity and debt offerings, including Pipes (private investment in public equity) and complex private equity investments. She also has had substantial experience over the years in fast-paced shelf public and Rule 144A offerings by major corporations, including Reits (real-estate investment trusts). David M Lynn is a partner in the Washington DC office of Morrison & Foerster, and is a co-chair of the firm s Public Companies and Securities Practice. His practice is focused on advising a wide range of clients on SEC matters, securities transactions and corporate governance. Mr Lynn is well known in the area of executive compensation disclosure, having co-authored The Executive Compensation Disclosure Treatise and Reporting Guide. While serving as Chief Counsel of the Securities and Exchange Commission s Division of Corporation Finance, he led the rulemaking team that drafted sweeping revisions to the SEC s executive compensation and related party disclosure rules. Anna T Pinedo is a partner in the Capital Markets Group of the New York office of Morrison & Foerster. She has concentrated her practice on securities and derivatives. Ms Pinedo represents issuers, investment banks/financial intermediaries, and investors in financing transactions, including public offerings and private placements of equity and debt securities, as well as structured notes and other structured products. She works closely with financial institutions to create and structure innovative financing techniques, including new securities distribution methodologies and financial products. Ms Pinedo has particular financing expertise in certain industries, including working with technology-based companies, telecommunications companies, healthcare companies, financial institutions, Reits and consumer finance companies. She has worked closely with foreign private issuers in their securities offerings in the United States and in the Euro markets. Ms Pinedo also has worked with financial institutions in connection with international offerings of equity and debt securities, equity- and credit-linked notes, and hybrid and structured products, as well as medium-term note and commercial paper programmes. Morrison & Foerster and Euromoney Institutional Investor All rights reserved. JOBS Act Quick Start 2014 update 1
3 About the firm We are Morrison & Foerster a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, Fortune 100, technology and life science companies. We have been included on The American Lawyer s A-List for ten straight years, and Fortune named us one of the 100 Best Companies to Work For. Our lawyers are committed to achieving innovative and businessminded results for our clients, while preserving the differences that make us stronger. This is MoFo. Visit us at 2 JOBS Act Quick Start 2014 update
4 Contents About the authors 1 About the firm 2 Introduction 5 CHAPTER 1 The IPO on-ramp 15 CHAPTER 2 The IPO process 26 CHAPTER 3 Applying Title I to other transactions 39 CHAPTER 4 Private offerings 42 CHAPTER 5 Crowdfunding 54 CHAPTER 6 Regulation A+ 61 CHAPTER 7 Exchange Act registration thresholds 73 CHAPTER 8 Research 77 CHAPTER 9 Other capital formation discussions 86 Appendix A 96 Appendix B 99 Appendix C 104 JOBS Act Quick Start 2014 update 3
5 4 JOBS Act Quick Start 2014 update
6 Introduction Many market participants were taken by surprise by the enactment of the Jumpstart Our Business Startups Act. The JOBS Act, HR 3606, was passed by the United States House of Representatives on March On March 22, the Senate passed HR 3606 with an amendment to Title III (providing for the crowdfunding exemption with enhanced investor protections). On March 27, the House of Representatives accepted the Senate s amendment, and on April 5, President Obama signed the JOBS Act into law. To many, this may sound like a quick path for legislation, especially when considered in the context of a Congress that seemed virtually deadlocked and unable to reach the consensus required to take action on pressing issues. When considered closely and in context, however, it becomes clear that the Act was the culmination of an at least year-long bipartisan effort in both the House and Senate to address concerns about capital formation and unduly burdensome Securities and Exchange Commission (SEC) regulations. The JOBS Act affects both exempt and registered offerings, as well as the reporting requirements for certain public issuers. A centrepiece of the Act is a new IPO onramp approach for a class of emerging growth companies (Title I), with confidential SEC staff review of draft IPO registration statements, scaled disclosure requirements, no restrictions on test-the-waters communications with qualified institutional buyers (QIBs) and institutional accredited investors before and after filing a registration statement, and fewer restrictions on research (including research by participating underwriters) around the time of an offering. In addition, the JOBS Act directs the SEC to amend its rules to: eliminate the ban on general solicitation and general advertising in Rule 506 offerings when sales are only to accredited investors, along with comparable changes to Rule 144A (Title II); establish a small offering exemption for crowdfunding (Title III); and create a new exemption for offerings up to $50 million (Title IV). The JOBS Act also raises the holder-of-record threshold for mandatory registration under the Securities Exchange Act of 1934, as amended (the Exchange Act) (Titles V and VI). In the chapters that follow, we discuss each of these measures in greater detail, but before we do so, it is important to understand the concerns that led legislators to act in concert to adopt the JOBS Act. The lifecycle for emerging companies in the United States For a long time in the United States, a company s financing lifecycle was generally fairly predictable. A growing company usually financed its business through investments from friends and family, then perhaps from angel investors, and finally, if the company was successful, from venture capital firms. Given the application of section 5 of the Securities Act of 1933, as amended (the Securities Act) 1 to public offerings of securities, a company was required to limit itself to conducting small rounds of financing, relying on various available exemptions from the registration requirements of the Securities Act, and to target principally sophisticated institutional investors. The securities that a company sold in these private or exempt offerings were classed as restricted securities, which means that the securities had never been offered pursuant to a registration statement and were subject to certain transfer restrictions. After various successful private financing rounds, the company s management and venture investors would begin to consider an IPO. Once a company was an SEC-reporting issuer, it became subject to a comprehensive regulatory framework. Although this regulatory framework may have imposed requirements that seemed onerous (at the time), being a public company offered distinct benefits. Once public, a company generally had many more financing opportunities. Already public companies relied on raising additional capital to finance their growth through follow-on public offerings, underwritten by one or more investment banks. From time to time, an already public company also might conduct a private placement or other exempt offering as part of an overall financing plan. Over time, as the capital markets in the United States have undergone changes and as regulations have evolved, the cost-benefit calculus for many companies has changed. Many companies have JOBS Act Quick Start 2014 update 5
7 concluded that going public might not be the most desirable liquidity event and remaining private longer or considering acquisition alternatives might be more appealing. A bit of background on the securities regulatory framework will help illustrate why the analysis changed for many companies. Securities regulatory framework A privately-held company (or a company that does not have securities that are publicly traded in the United States), whether domestic or foreign, that would like to access the US markets first must determine whether it is willing to subject itself to the ongoing securities reporting and disclosure requirements, as well as the corporate governance requirements that are part and parcel of registering securities publicly in the United States. An issuer may conduct a public offering in the United States by registering the offering and sale of its securities pursuant to the Securities Act, and also by registering its securities for listing or trading on a US securities exchange pursuant to the Exchange Act. 2 Instead, an issuer may choose to access the US capital markets by offering its securities in an offering exempt from the registration requirements of the Securities Act. Finally, a private company that elects to postpone, or seeks to avoid, becoming a public company may become subject to SEC reporting obligations inadvertently if it has: total assets exceeding $10 million as of the last day of its fiscal year, and a class of equity securities held of record by either 2,000 persons or 500 persons who are not accredited investors (for banks and bank holding companies, a class of equity securities held of record by 2,000 or more persons), whether or not that class of equity securities is listed on a national securities exchange. Section 5 of the Securities Act sets forth the registration and prospectus delivery requirements for securities offerings. 3 In connection with any offer or sale of securities in interstate commerce or through the use of the mails, section 5 requires that a registration statement must be in effect and a prospectus meeting the prospectus requirements of section 10 of the Securities Act must be delivered before sale. 4 This means that the Securities Act generally requires registration for any sale of securities, although it also provides exemptions or exclusions from this general registration requirement. The purpose of the Securities Act is to ensure that an issuer provides investors with all information material to an investment decision about the securities that it is offering. The registration and prospectus delivery requirements of section 5 require filings with the SEC and are intended to protect investors by providing them with sufficient information about the issuer and its business and operations, as well as about the offering, so that they may make informed investment decisions. These apply to offerings that are made to the general public (regardless of the sophistication of the offerees). The SEC presumes that distributions not involving public offerings (or widespread distributions) do not involve the same public policy concerns as offerings made to a limited number of offerees that have access to the same kind of information that would be included in a registration statement. That information can be conveyed by providing disclosure or by ensuring that the offerees have access to the information. There are a number of regulatory restrictions on communications for issuers that undertake a public offering, given that the SEC always has emphasised that the prospectus should be the principal document used by investors in making their investment decision. IPO and Exchange Act registration In connection with an initial public offering of securities, an issuer must provide extensive information about its business and financial results. The preparation of the registration statement is time-consuming and expensive. Once the document is filed with the SEC, the SEC will review it closely and provide the issuer with detailed comments. The comment process may take as long as 60 to 90 days once a document has been filed with, or submitted to, the SEC. Once all of the comments have been addressed and the SEC staff is satisfied that the registration statement is properly responsive, the registration statement may be used in connection with the solicitation of offers to purchase the issuer s securities. Depending upon the nature of the issuer and the nature of the securities being offered by the issuer, the issuer may use one of various forms of registration statement. Once an issuer has determined to register its securities under the Securities Act, the issuer usually will also apply to have that class of its securities listed or quoted on a securities exchange, and in connection with doing so will register its securities under the Exchange Act. The Exchange Act imposes two separate but related obligations on issuers: registration obligations and reporting obligations. If an issuer becomes subject to the reporting requirements of the Exchange Act, the issuer remains subject to those requirements until, in the case of exchange-listed securities, those securities are delisted, or, in the case of securities listed by reason of the issuer s asset size and number of record holders, the issuer certifies that it meets certain requirements. Once an issuer conducts an IPO in the United States or has a class of securities listed or traded on a national 6 JOBS Act Quick Start 2014 update
8 securities exchange, the issuer will be generally subject to the reporting requirements of the Exchange Act. Issuers that have undertaken an IPO or that are SEC-reporting companies also will become subject to many other rules and regulations. Over time, the regulatory burdens for public companies have increased. In 2002, following a series of widely reported corporate scandals involving fraudulent accounting practices and governance abuses, the United States adopted legislation affecting all public companies, the Sarbanes-Oxley Act of Sarbanes-Oxley imposed a broad series of requirements relating to corporate governance, enhanced public disclosure, and the imposition of civil and criminal penalties for wrongdoing. Sarbanes-Oxley and its associated rules: require that CEOs and CFOs certify the accuracy and completeness of their company s periodic reports and impose criminal penalties for false certification; require the establishment and regular evaluation of disclosure controls and procedures, and internal control over financial reporting designed to ensure the accuracy and completeness of the information reported to the SEC and for the preparation of financial statements; require the establishment by all listed companies of an independent audit committee; require the disgorgement of compensation by CEOs and CFOs following an accounting misstatement that results from misconduct; impose limitations on trading by officers and directors during retirement plan blackout periods; prohibit the extension of credit to related parties; and require the SEC to review a registrant s filings once every three years. Although relief from compliance with certain of these requirements was provided to smaller companies, increased compliance costs and increased liability may have had a chilling effect on IPOs. To (or not to) go public Many commentators have noted that, over time, the US capital markets have become less competitive, and the number of companies seeking to go public has declined. For example, in communications from Congressman Darrell Issa, chairman of the House Committee on Oversight and Government Reform, to Mary Schapiro, chairman of the SEC (discussed further below), Issa noted that the number of IPOs in the US has plummeted from an annual average of 530 during the 1990s to about 126 since 2001, with only 38 in 2008 and 61 in The number of companies listed on the main US exchanges peaked at more than 7,000 in 1997 and has been declining ever since it is now at about 4, Meanwhile, the value of transactions in private-company shares has grown, almost doubling in 2010 to $4.6 billion from about $2.4 billion in 2009, and was expected to increase to $6.9 billion for Other reports cite similar statistics and highlight that smaller companies have been disproportionately affected, with most IPOs that are completed involving larger companies and a significant offering size. Although commentators would be ready to stipulate that the number of IPOs is down, there would be little agreement regarding the causes for the decline. Quite a number of different theories have been advanced to explain this phenomenon. Academics active in this area have grouped the theories into two broad categories: first, those attributing the decline to regulatory overreach, and second, those attributing the decline to changes in the ecosystem or market structure changes. Many studies indicate that companies are waiting longer to go public as a result of anticipated costs associated with Sarbanes-Oxley compliance, as well as the additional costs associated with being a public company. For example, a public company must incur costs for D&O insurance, director compensation (especially audit committees), and disclosure controls and SEC reporting costs. Foreign issuers may be wary of the increased liability that comes with being an SEC-reporting company, as well as of the litigious environment in the United States. Many executive officers of privately-held companies also are concerned that going public will limit their flexibility. As officers of a public company, they are required to make very difficult decisions, including decisions regarding financial reporting, accounting estimates and accounting policies, while they are subject to more scrutiny and more risk as a result of their choices. Given the prospect of shareholder litigation and other litigation concerns, their determinations become fraught with risk. Earnings pressure and the need to respond to many constituencies (such as research analysts, large institutional holders and aggressive hedge fund holders) may affect the decisionmaking processes. This may inhibit their desire to take risk and may lead them to be more conservative than they otherwise would be. A recent survey found that, in fact, the principal reason given by senior managers of privatelyheld companies for remaining private is that they would like to preserve decision-making control. 8 In addition, actually conducting an IPO will be time-consuming and expensive given the disclosure and financial statement requirements. Over time, more financing alternatives have developed for issuers. An issuer could choose to avail itself of one of the exemptions from registration and conduct private JOBS Act Quick Start 2014 update 7
9 offerings. There have been many regulatory changes that have provided greater legal certainty as to the availability of private offering exemptions, such as the safe harbours contained in Regulation D, especially Rule 506. In large measure, as a result of these changes, a number of securities offering methodologies involving exempt offerings have developed and become increasingly popular. Many of these offering methodologies have come to resemble the process used for public distributions of securities. Investors have become more receptive to participating in private placements and owning so-called restricted securities as the limitations on hedging or transferring restricted securities have been relaxed. More recently, private secondary markets have developed that provide liquidity opportunities for holders of the securities of private companies to sell their positions. Other commentators and academics note that a variety of market structure changes may be the cause of or may contribute to the decline of IPOs, and, especially smaller company IPOs. During the 1990s and early 2000s, consolidation in the investment banking sector led to the disappearance of many boutique or speciality investment banks that had as their focus financing transactions for smaller companies. Some commentators point to the drop in bid-ask spreads that took place following decimalisation in In 2003, as a result of the fallout from the dotcom boom, rules and regulations were adopted that imposed restrictions on research analyst coverage and required the separation of research and investment banking activities. The burdensome regulations imposed significant compliance costs on investment banks with research activities and changed the nature of research coverage. As a result, the fewer, larger investment banks that remained after industry consolidation focused their resources on covering fewer companies (usually giving preference to larger, well-capitalised companies). These various factors seemed to change the economics associated with smaller company IPOs and tend to favour IPOs by larger, more established companies. Also, the view developed that larger companies, with a longer track record and more predictable earnings histories, make better public companies or are better able to function as public companies. SEC developments The SEC has tried to keep pace with changes in the capital markets and has consistently introduced reforms that sought to balance investor protection needs with the need to provide issuers with access to capital. Since the early 1980s, the SEC has undertaken a number of steps to facilitate capital formation. The SEC has, among other changes, created and modified the integrated disclosure system, instituted and expanded the continuous and delayed offerings processes, permitted the electronic submission of most SEC filings, and generally tried to accommodate the needs of both large and small issuers. In 2005, the SEC undertook a series of changes related to securities offerings and offering-related communications, referred to as securities offering reform. Although this reform benefited principally the largest and most sophisticated issuers (well-known seasoned issuers, or WKSIs), the changes also expanded the range of permissible communications, even during IPOs. In December 2004, the SEC established the Advisory Committee on Smaller Public Companies to assist the SEC in evaluating the current securities regulatory system relating to disclosure, financial reporting, internal controls, and offering exemptions for smaller public companies. 9 The Advisory Committee charter stated that its objective was to assess the impact of the current regulatory system for smaller companies under the securities laws of the United States and to make recommendations for changes. 10 The Advisory Committee considered the effect of many new regulatory requirements on smaller public companies, as well as capital-raising alternatives for smaller companies. In 2006, it issued its final report, containing 33 recommendations, many of which focused on capital formation, including a recommendation that a new private offering exemption from the Securities Act registration requirements be adopted that would not prohibit general solicitation and advertising for transactions with purchasers that do not need all the protections of Securities Act registration requirements. The Advisory Committee noted that the ban on general solicitation in a private offering resulted in excessive concern about the offeree that may never actually purchase securities, rather than on protection of the actual investors. The Committee also noted that, given the pace of technological change, the bank had become outmoded and limited issuers from using the internet and other tools to communicate with potential investors. This was not the first time that a recommendation had been made to ease the prohibition on general solicitation. In 2007, practitioners that were members of an American Bar Association Committee submitted a letter to the SEC containing recommendations for a comprehensive overhaul of the securities laws governing the private placement of securities. 11 The letter cited problems with the private offering process that impacted capital formation. In May 2007, the SEC approved publication of eight releases designed to update and improve federal securities regulations that significantly affect smaller public 8 JOBS Act Quick Start 2014 update
10 companies and their investors. Ultimately, the holding period requirements under Rules 144 and 145 were shortened, making restricted securities more liquid, and smaller public companies gained limited access to the use of shelf registration statements. Although all of these reforms modernised the securities offering process, streamlined communications requirements, and addressed certain of the concerns related to private or exempt offerings, the reforms did not squarely address the IPO process, nor did they address many of the thorniest issues arising in exempt offerings. Proposed changes post-dodd-frank In the aftermath of the financial crisis, and following adoption of the Dodd-Frank Act, there was renewed focus on the effect of regulation on the competitiveness of the US capital markets and on entrepreneurship and emerging companies. As attention in the United States turned to promoting economic activity, the dialogue related to regulatory burdens and their effect on capital formation took on a new sense of urgency. Issa-Schapiro correspondence On March , House Committee on Oversight and Government Reform chairman Issa sent a letter to SEC chairman Schapiro. The letter raised concerns about whether the current securities regulatory framework had a negative impact on capital formation, leading to the dearth of IPOs in the US, as well as the extent to which SEC regulations potentially limited other capital raising activities by small and emerging companies. 12 The letter from Issa also sought specific information regarding economic studies conducted by the SEC staff in these areas, along with information concerning the consideration of costs and benefits in connection with SEC rulemakings. Issa s letter discussed these statistics and raised questions about five topics: the decline of the US IPO market, the communications rules in connection with securities offerings, the 499-shareholder cap under section 12(g) of the Exchange Act, organisational considerations, and new capital-raising strategies. In her response dated April , Schapiro stated she had requested that the SEC staff take a fresh look at the agency s rules in order to develop ideas for the SEC about ways to reduce the regulatory burdens on small business capital formation in a manner consistent with investor protection. 13 Schapiro outlined a number of new SEC initiatives in her response, including SEC staff review of (i) the restrictions on communications in initial public offerings; (ii) whether the general solicitation ban should be revisited; (iii) the number of shareholders that trigger public reporting, including questions regarding the use of special purpose vehicles; and (iv) the regulatory questions posed by new capital-raising strategies, such as crowdfunding. Schapiro also indicated that the SEC was in the process of forming a new Advisory Committee on Small and Emerging Companies, which was subsequently convened. Decline of the IPO market in the US Issa s letter cited statistics about the declining US IPO market and asked whether the SEC had evaluated the reasons for such a decline. The letter asked whether the possible reasons for the decline included increasingly complex SEC regulations; costs associated with compliance with the Sarbanes-Oxley Act; the uncertainty generated by the pending rulemakings under the Dodd- Frank Wall Street Reform and Consumer Protection Act (generally known simply as the Dodd-Frank Act); the risk of class-action lawsuits; or the expansion of regulatory, legal, and compliance burdens. The letter also cited examples of the IPOs of Google and GoDaddy.com that were delayed and cancelled, respectively, as evidence of overly burdensome communications rules. In her response, Schapiro discussed various reasons for the decline in the IPO market, such as each company s own situation and market factors at the time of the contemplated IPO. Schapiro stated that it is difficult to determine why a company decides to undertake an IPO or declines to do so. The costs associated with conducting an IPO and becoming a public reporting company factor into the decision as to whether to conduct an IPO. Schapiro stated that the SEC had lowered these costs in recent years and that, in 2010, approximately 40% of first-time registrants were smaller reporting companies. Similarly, in 2010, nearly half of registered offerings conducted by first-time registrants were for offerings of less than $10 million. In a discussion about the challenges faced by early-stage growth companies, Schapiro pointed out that such companies have greater difficulty raising capital because of the lack of disclosure on a regular basis, smaller and more variable cash flows, a smaller asset base, and a larger percentage of intangible assets. Schapiro also stated that while there are studies that show that the number of US IPOs had declined, 14 other studies conducted by SEC staff members indicate that for the period , the US market s share of global IPOs in terms of total dollar proceeds and average dollar proceeds was much higher than those of the United Kingdom and Hong Kong. 15 The other reason for companies to favour an IPO in the European markets is that the underwriters spread is significantly lower than in JOBS Act Quick Start 2014 update 9
11 the United States. For example, the gross spread in the US for an offering size between $25 million and $100 million is approximately 7%, while in Europe it would be approximately 4% for a similar offering. The impact of the communications rules In his letter, Issa indicated that the communication rules governing the offerings of securities potentially conflict with the promotion of disclosure and transparency and the First Amendment. He requested an explanation for the potential harm to a non-accredited investor that may realistically result from the receipt of an advertisement by an issuer of unregistered securities that is targeted at accredited investors or QIB. In her response, Schapiro described the communications rules that apply to registered and unregistered offerings. Under the Securities Act, for registered offerings, an issuer s ability to communicate varies depending on the three phases of the registration process called the pre-filing period, quiet period, and the post-effective period. 16 During the prefiling period before filing a registration statement, an issuer may not offer securities. 17 During the quiet period (or waiting period), an issuer can make oral offers but cannot make written offers other than through a prospectus that complies with section 10 of the Securities Act. 18 In the post-effective period, an issuer can sell and deliver securities as long as a final prospectus that complies with section 10(a) of the Securities Act accompanies or precedes the delivery of the securities. Schapiro discussed the offering reforms adopted in 2005 that liberalised an issuer s ability to communicate during offerings. 19 She also clarified that had these rules been effective when Google and Salesforce.com conducted their IPOs, the SEC would not have imposed a cooling-off period to address gun-jumping concerns. Schapiro s letter points out that with respect to offerings not registered under the Securities Act, issuers relying on section 4(a)(2) of the Securities Act or its safe harbour, Rule 506 of Regulation D, generally are not allowed to use a general solicitation or advertising to attract investors to their offering. In addition, the SEC adopted Rule 155, another safe harbour, that allows companies to abandon a public offering and instead raise money through a private offering. Schapiro recognised that some view the general solicitation ban as a significant burden on capital raising and may be unnecessary as offerees who might be located through general solicitation and who might not purchase the securities would not be harmed. 20 Others, however, support the solicitation ban on the grounds that it helps prevent securities fraud by making it more difficult for fraudsters to attract investors or unscrupulous issuers to condition the market. 21 The 499-shareholder cap Issa raised concerns about the 499-shareholder cap under section 12(g) of the Exchange Act as being a fundamental roadblock to private equity capital formation. The letter went on to cite the case of the Facebook equity issuance in which the 499-person threshold would have been overcome by grouping multiple shareholders into single entities. He questioned whether the use of special purpose vehicles (SPVs) for the purposes of facilitating investments in private companies resulted in disjointed or illiquid markets and prevented price discovery. In her letter, Schapiro stated that Rule 12(g) of the Exchange Act was enacted by Congress in 1964 and that the securities markets have changed significantly since then. The section requires a company to register its securities with the SEC within 120 days after the last day of its fiscal year if, at the end of the fiscal year, the securities are held of record by 500 or more persons and the company has total assets exceeding $10 million. Schapiro pointed out that today, the vast majority of shares of public companies are held in nominee or so-called street name and, as a result, individual shareholders are not counted because the securities are not held of record by those individuals. Conversely, in private companies, shareholders generally hold their shares directly, or of record, and thus those companies may exceed the 499-shareholder limit under Rule 12(g), which would require them to commence reporting. Schapiro stated in her letter that the issue of how holders are counted and how many holders should trigger registration will need to be examined. In his letter, Issa also raised concerns about Rule 12g5-1(b)(3) of the Exchange Act. That rule states that if an issuer knows that the form of holding securities of record is primarily used to circumvent section 12(g), the beneficial holders will be deemed the record owners. Noting that this rule has been invoked sparingly, Schapiro stated that this rule is not meant to create uncertainty for issuers but rather is intended to prevent issuers from circumventing the registration requirements. Schapiro also noted that Congress has provided the SEC with broad authority, in sections 12(h) and 36 of the Exchange Act, to make exemptions with respect to the section 12(g) registration requirements and that section 12(g) of the Exchange Act also allows the SEC to define the terms held of record and total assets. Therefore, the SEC has the requisite authority to revise the shareholder threshold if it concludes that doing so is not inconsistent with the public interest or protection of investors. 10 JOBS Act Quick Start 2014 update
12 New capital-raising strategies The letter from Issa raised questions regarding crowdfunding, singling out that approach as a possible new method of capital formation that has gained popularity. Schapiro stated that she understands crowdfunding to be a new method of capital formation whereby groups of people pool money, typically small individual contributions, to support an effort by others to accomplish a specific goal. Initially, such arrangements did not trigger securities law issues because there was no profit participation. Schapiro noted, however, that interest in offering an ownership interest in a developing business and an opportunity for a return on investment capital is growing. She provided an example of crowdfunding as described to the staff as an offering of up to a maximum of $100,000 of equity securities of a company, with individual investments capped at $100. She noted that proponents of this approach to capital formation seek a registration exemption, and the SEC has been exploring several approaches to address this. 22 In considering whether to grant an exemption from registration for such arrangements, Schapiro stated that the SEC would consider, for example, its experience with Securities Act Rule 504, which was revised in 1999 due to concerns about fraud in the market. The widespread use of the internet for capital raising presents additional challenges in this area. Legislative and other efforts At more or less the same time that these exchanges were taking place, legislative efforts were moving forward that contemplated other changes to the capital formation process for smaller and emerging companies. Representative David Schweikert introduced the Small Company Capital Formation Act of 2011 in the US House of Representatives, which sought to amend the Regulation A offering threshold from $5 million to $50 million for public offerings by smaller companies. 23 The Small Company Formation Act was introduced after hearings on the topic of capital formation were held in December 2010, during which industry representatives expressed support for Regulation A reform as well as other changes to the capital formation process. During the same session of Congress, other individual bills were introduced that would have increased the threshold for mandatory registration for all companies under the Exchange Act from 500 persons holding equity securities of record to 1,000 persons, and that would have amended section 12(g) of the Exchange Act by raising the registration threshold from 500 to 2,000 record holders if the issuer is a bank or a bank holding company. 24 Representative Patrick McHenry introduced legislation that would have added a crowdfunding exemption under both section 4 of the Securities Act and section 12(g) of the Exchange Act. Representative Kevin McCarthy introduced legislation to amend section 4(a)(2) of the Securities Act to state specifically that general solicitation and general advertising would not affect the availability of the private placement exemption to registration under section 5 of the Securities Act, and to direct the SEC to remove the prohibition against general solicitation and advertising for securities issued under Rule 506 of Regulation D, provided that all purchasers of the securities are accredited investors and that the issuer took reasonable steps set forth by the SEC to ascertain that the holder is indeed an accredited investor. Of course, these individual legislative proposals were the precursors to the JOBS Act. In March 2011, the US Treasury Department convened the Access to Capital Conference to gather insights from capital markets participants and solicit recommendations for how to restore access to capital for emerging companies especially public capital through the IPO market. At this conference, a small group of professionals representing broad sectors of the IPO market decided to form the IPO Task Force to examine the challenges that emerging growth companies face in pursuing IPOs, and to provide recommendations for restoring effective access to the public markets for emerging growth companies. The Task Force published its report, titled Rebuilding the IPO On-Ramp, in October In the report, the Task Force noted that after achieving a one-year high of 791 IPOs in 1996, the US IPO market severely declined from 2001 to 2008, averaging only 157 IPOs per year during that period, with a low of 45 in 2008, with IPOs by smaller companies showing the steepest declines. The report presents a nuanced view of the causes of this decline, pointing to a series of regulatory and market structure changes. The report notes that these changes have coalesced and as a result have had the effect of driving up costs for smaller companies looking to go public; constraining the amount of information available to investors about such companies; and shifting the economics of investment banking away from long-term investing in such companies and toward high-frequency trading of large-cap stocks, thus making the IPO process less attractive to, and more difficult for, smaller companies. The report made four principal recommendations to the Treasury Department: providing an on-ramp (or phasing in of disclosure requirements) for smaller companies that complete IPOs; improving the availability and flow of information for investors before and after an IPO; lowering the capital gains tax rate for investors who JOBS Act Quick Start 2014 update 11
13 purchase shares in an IPO and hold these shares for a minimum of two years; and educating issuers about how to succeed in the new capital markets environment. The Task Force stressed that these recommendations purport only to adjust the scale of current regulations, not change the focus on investor protection. In December 2011, legislation, titled the Reopening American Capital Markets to Emerging Growth Companies Act of 2011, was introduced that incorporated many of the recommendations included in the Report, including a proposal to amend section 2(a) of the Securities Act and section 3(a) of the Exchange Act by creating a new category of issuer called an emerging growth company and exempting these emerging growth companies, at least initially, from certain requirements. This legislation formed the basis of much of Title I of the JOBS Act. The legislative efforts received a boost when, in January 2012, President Obama expressed support for a number of these initiatives. During his State of the Union address, the President emphasised the need to foster innovation and encourage start-ups and small businesses. On January , the President released the Startup America Legislative Agenda to Congress, which reflected support for an increase in the offering threshold in Regulation A, a national framework for crowdfunding, and the adoption of an IPO on-ramp. Shortly thereafter, the individual legislative initiatives referenced above coalesced into a single legislative proposal, and so we finish where we started off, with the enactment of the JOBS Act. In the chapters that follow, we provide a summary of the main provisions of the JOBS Act and a discussion of their effect on capital formation. 12 JOBS Act Quick Start 2014 update
14 ENDNOTES 1. Securities Act of 1933, 48 Stat. 74 (May ), codified at 15 USC 77a et seq. (as amended, the Securities Act). 2. Securities Exchange Act of 1934, 48 Stat. 881 (June ), codified at 15 USC 78a et seq. (as amended, the Exchange Act) USC 77e USC 77e(b). 5. See mpanies%20and%20capital %20markets/Files/IPO%20crisis%20- %20June%202010%20-%20FINAL.pdf. 6. See id. 7. See html?KEYWORDS =%22new+stock+rules% See James C. Brau & Stanley E. Fawcett, Initial Public Offerings: An Analysis of Theory and Practice, 61 J. Fin. 399 (2006), available at Securities Act Release No , 87 S.E.C. Docket 1138 (February ); Exchange Act Release No , 84 S.E.C. Docket 1340 (December ). 10. Advisory Committee on Smaller Public Companies, Charter, available at Letter from Keith F. Higgins, Chair, ABA Committee on Federal Regulation of Securities, to John W. White, Director, Division of Corporation Finance (March ), available at omments/ pdf. 12. See a pdf. 13. See See, e.g. D. Weild and E. Kim, A Wake Up Call for America, Grant Thornton LLP (2009); Committee on Capital Markets Regulation, Continued Erosion in Competitiveness of the U.S. Equity Markets (2009). 15. See C. Caglio, K. Weiss Hanley and Marietta- Westberg, Going Public Abroad: The Role of International Markets for IPOs (February 2011). 16. The Securities Act does not state when the pre-filing period begins. The SEC has stated that an issuer will be in registration at least from the time it begins preparing the related registration statement or the time it has reached an understanding with an underwriter, even if all the terms or conditions of the underwriting arrangement have not been agreed upon. See SEC Release No , Publication of Information Before or After the Filing and Effective Date of a Registration Statement Under the Securities Act of 1933 (October ); SEC Release No , Guidelines for Release of Information by Issuers Whose Securities Are in Registration (August ). 17. See Securities Act 5(c). 18. See Securities Act 5(b)(1). 19. See Release No , Securities Offering Reform (July ), See, e.g., Final Report of the Advisory Committee on Smaller Public Companies to the U.S. Securities and Exchange Commission (April ), available at Joseph McLaughlin, How the SEC Stifles Investment and Speech, The Wall Street Journal (February ). Concerns about the scope of the Commission s rules on general solicitation and advertising have been raised by the participants in the annual SEC Government-Business Forum on Small Business Capital Formation. See 2009 Annual SEC Government-Business Forum on Small Business Capital Formation Final Report (May 2010), available at See Pinter v. Dahl, 486 U.S. 622, 644 (1988) ( The purchase requirement clearly confines 12 liability to those situations in which a sale has taken place. Thus, a prospective buyer has no recourse against a person who touts unregistered securities to him if he does not purchase the securities. ). 22. For example, crowdfunding was discussed at the SEC s November 2010 Forum on Small Business Capital Formation. Participants in the Forum recommended that the SEC consider implementing a new exemption from Securities Act registration for crowdfunding, which would include offerings of up JOBS Act Quick Start 2014 update 13
15 to $100,000 and a cap on individual investments not to exceed $100. In January 2011, representatives from the Division of Corporation Finance s Office of Small Business Policy met with a group from the Small Business & Entrepreneurship Council, which advocated an exemption from registration requirements for crowdfunding offerings meeting specific requirements. In addition, the Office of Small Business Policy and other members of the Division of Corporation Finance Staff discussed crowdfunding with representatives from the North American Securities Administrators Association, the organisation of state securities regulators, at a conference held on March HR 1070, available at 112hr1070ih/pdf/BILLS-112hr1070ih.pdf. 24. Note that this change merely puts into the statute the current requirements of SEC rules under Sections 12(g) and 15(d) of the Securities Act. 25. See he_ipo_on-ramp.pdf. 14 JOBS Act Quick Start 2014 update
16 CHAPTER 1 The IPO on-ramp Title I of the JOBS Act establishes a new process and disclosure regime for IPOs by a new class of companies referred to as emerging growth companies (EGCs). As discussed in the Introduction, Title I of the JOBS Act was enacted based on the recommendations of the Task Force, which sought ways to improve the offering process as a means for encouraging more IPOs in the United States. As truly the centrepiece of the JOBS Act, Title I contemplates, for those companies that qualify as EGCs, confidential SEC staff review of draft IPO registration statements, scaled disclosure requirements, no restrictions on test-the-waters communications with qualified institutional buyers (QIBs) and institutional accredited investors before and after filing a registration statement, and fewer restrictions on research (including research by participating underwriters) around the time of an offering. Because Title I was retroactively effective to December for issuers that qualified as EGCs, it has had the most significant impact to date on the regulation of capital formation transactions. Given the immediate effectiveness of Title I of the JOBS Act, the SEC staff provided interpretive guidance in the form of frequently asked questions that are posted on the SEC s website. The FAQs were initially issued on April and were updated on May and September These FAQs are not rules or regulations of the SEC, but rather reflect the views of the staff of the SEC s Division of Corporation Finance. The definition of EGC In order to qualify for the IPO on-ramp contemplated by Title I of the JOBS Act, an issuer must qualify as an EGC, which is determined for the purpose of the reporting, accounting, auditing and corporate governance breaks that the company may use if it went public through a registered securities offering on or after December , and for an IPO at any time during the process when the EGC is making use of the Title I provisions. The $1 billion in revenue test An EGC is defined for the purposes of Title I as an issuer (including a foreign private issuer) with total annual gross revenues of less than $1 billion (subject to inflationary adjustment by the SEC every five years) during its most recently completed fiscal year. 2 The SEC indicates that the phrase total annual gross revenues means total revenues of the issuer (or a predecessor of the issuer, if the predecessor s financial statements are presented in the registration statement for the most recent fiscal year), as presented on the income statement in accordance with US generally accepted accounting principles (GAAP). 3 If a foreign private issuer is using International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB) as its basis for presentation, then the IFRS revenue number is used for this test. 4 Because an issuer must determine its EGC status based on revenues as expressed in US dollars, the SEC staff indicates that a foreign private issuer s conversion of revenues should be based on the exchange rate as of the last day of the fiscal year. 5 For financial institutions, the SEC has indicated that total annual gross revenues should be determined in the manner consistent with the approach used for determining status as a smaller reporting company, which looks to all gross revenues from traditional banking activities. For this purpose, a financial institution must include all gross revenues from traditional banking activities. Banking activity revenues include interest on loans and investments, dividends on investments, fees from loan origination, fees from trust and investment services, commissions, brokerage fees, mortgage servicing revenues, and any other fees or income from banking or related services. Revenues do not include gains and losses on dispositions of investment portfolio securities (although it may include gains on trading account activity if that is a regular part of the institution s activities). 6 By way of example, the SEC indicates that, in applying the revenue test for determining EGC status, a calendar year-end issuer that would like to file a registration statement for an initial public offering of common equity securities in January 2013 (which would present financial statements for 2011 and 2010 and the nine months ended September and 2011) should look to its most recently completed fiscal year, which would be the most JOBS Act Quick Start 2014 update 15
17 recent annual period completed, regardless of whether financial statements for the period are presented in the registration statement. In this example, the most recent annual period completed would be Applicability of the December effective date An issuer can qualify as an EGC if it first sold its common stock in a registered offering on or after December The SEC has indicated that this eligibility determination is not limited to initial public offerings that took place on or before December , in that it could also include an offering of common equity securities under an employee benefit plan on Form S-8, as well as a selling shareholder s registered secondary offering. 8 The SEC notes that just having a registration statement go effective on or before December is not a bar to EGC status, as long as no common equity securities were actually sold off of the registration statement on or before December Qualification for EGC status The SEC has indicated that asset-backed issuers and registered investment companies do not qualify as EGCs; however, business development companies could qualify. 10 The SEC may determine, through the course of its review process or otherwise, that other particular types of issuers are not EGCs for the purposes of Title I of the JOBS Act. Previously public issuers An issuer that succeeds to a predecessor s Exchange Act registration or reporting obligations under Rules 12g-3 and 15d-5 will not qualify for EGC status if the predecessor s first sale of common equity securities occurred on or before December , as the predecessor was not eligible for that EGC status. 11 The SEC has addressed the EGC status of an issuer that was once an Exchange Act reporting company but is not required to file Exchange Act reports. 12 The SEC notes that such an issuer can take advantage of the benefits of EGC status, even though its initial public offering of common equity securities occurred on or before December In this regard, the SEC indicates that if an issuer would otherwise qualify as an EGC but for the fact that its initial public offering of common equity securities occurred on or before December , and such issuer was once an Exchange Act reporting company but is not required to file Exchange Act reports, then the SEC would not object if such issuer takes advantage of all of the benefits of EGC status for its next registered offering and thereafter, until it triggers one of the disqualification provisions in sections 2(a)(19)(A)-(D) of the Securities Act. This position is not available to an issuer that has had the registration of a class of its securities revoked pursuant to Exchange Act section 12(j). The SEC goes on to note that, based on the particular facts and circumstances, the EGC status of an issuer may be questioned if it appears that the issuer ceased to be a reporting company for the purpose of conducting a registered offering as an EGC. The SEC recommends that issuers with questions relating to these issues should contact the Division of Corporation Finance s Office of the Chief Counsel. This interpretation seeks to address EGC status for those companies that were taken private through private equity or management buyouts with the expectation of a liquidity event or exit through an IPO in the future, which have made up a relatively significant portion of the IPO market in recent years. Losing EGC status Status as an EGC is maintained until the earliest of: the last day of the fiscal year in which the issuer s total annual gross revenues are $1 billion or more; the last day of the issuer s fiscal year following the fifth anniversary of the date of the first sale of common equity securities of the issuer pursuant to an effective registration statement under the Securities Act (for an debt-only issuer that never sold its common equity pursuant to an Exchange Act registration statement, this five-year period will not run); any date on which the issuer has, during the prior threeyear period, issued more than $1 billion in non-convertible debt; or the date on which the issuer becomes a Large Accelerated Filer, as defined in the SEC s rules. 13 With regard to the $1 billion debt issuance test, the SEC has indicated that the three-year period covers any rolling three-year period, which is not in any way limited to completed calendar or fiscal years. 14 The SEC also noted that it reads non-convertible debt to mean any nonconvertible security that constitutes indebtedness (whether issued in a registered offering or not), thereby excluding bank debt or credit facilities. 15 The debt test references debt issued, as opposed to issued and outstanding, so that any debt issued to refinance existing indebtedness over the course of the three-year period could be counted multiple times. The SEC has indicated, however, that the staff will not object if an issuer does not double count the principal amount from a private placement and the principal amount from the related Exxon Capital or A/B exchange offer. 16 The SEC also addressed two specific examples and how the EGC status of the issuer would be determined in the event of an acquisition or reverse merger JOBS Act Quick Start 2014 update
18 Example 1: Forward acquisition Example 2: Reverse merger $1B annual revenues test In 2012, look to Company A s revenues for In 2012, look to Company D s revenues for In 2013, look to Company A s revenues for 2012, which will include Company B s revenues from October In 2013, look to Company D s revenues for 2012, which will include Company C s revenues from October Five-year anniversary test Look to Company A s date of first sale. Look to Company C s date of first sale. $1B issued debt during previous three years test Look to Company A s debt issuances, which will include Company B s debt issuances from October Look to Company D s debt issuances, which will include Company C s debt issuances from October Large accelerated filer test At December , look to Company A s market value at June At December , look to Company C s market value at June At December , look to Company A s market value (which will include Company B s) at June At December , look to Company C s market value (which will include Company D s) at June In Example 1, Company A acquires Company B for cash or stock, in a forward acquisition. Company A is both the legal acquirer and the accounting acquirer. In Example 2, Company C undertakes a reverse merger with Company D, an operating company. Company D is presented as the predecessor in the post-transaction financial statements. In each example, the companies fiscal year is the calendar year; the transactions occur on September ; and FAQ 24, which relates to succession of Exchange Act obligations, is not implicated. In determining whether Company A and Company C trigger any of the disqualifications from the definition of EGC in section 2(a)(19)(A), (B), (C) or (D) (referenced above), the SEC staff notes the following framework: Timing of the EGC determination Securities Act Rule 401(a) provides that the form and contents of a registration statement and prospectus shall conform to the applicable rules and forms as in effect on the initial filing date of such registration statement and prospectus, and applies to registration statements at the initial filing date, not at the time that a registration statement is submitted for confidential review. 18 Therefore, an issuer must qualify as an EGC at the time of submission in order to use the confidential review process for a registration statement, or any amended submission of the registration statement. If an issuer loses EGC status while the SEC staff is reviewing the registration statement on a confidential basis, then the issuer must file the registration statement and all of the draft submissions in order to proceed with the review process. When the EGC files the registration statement, the issuer s EGC status is retained while that registration statement is in registration by operation of Securities Act Rule 401(a). With regard to the use of the permitted test-the-waters communications under Securities Act section 5(d) (discussed below), an issuer must determine whether it qualifies as an EGC at the time it engages in the test-the-waters communications. In this regard, the SEC has noted that if the issuer later loses its EGC status by the time the registration statement is filed, then the issuer would not retroactively lose the ability to utilise prior test-the-waters communications. 19 Benefits available to EGCs When an issuer qualifies as an EGC, it may take advantage of a number of benefits in connection with its IPO and subsequent public reporting and corporate governance. These benefits are designed to facilitate the public offering process, promote communications in and around the time of the IPO, and allow the EGC to ease into certain public reporting, accounting, auditing, and corporate governance requirements. JOBS Act Quick Start 2014 update 17
19 EGC communications Title I of the JOBS Act provides EGCs, or any other person they authorise, the flexibility to engage in oral or written communications with QIBs and institutional accredited investors in order to gauge their interest in a proposed offering, whether before or following the first filing of any registration statement, subject to the requirement that no security may be sold unless accompanied or preceded by a Securities Act section 10(a) prospectus. 20 This provision allows an EGC to test the waters for a potential IPO by communicating with investors and gauging their potential interest in the offering. 21 An EGC can use the test-the-waters provision with respect to any registered offerings that it conducts while qualifying for EGC status. There are no form or content restrictions on these communications, and there is no requirement to file written communications with the SEC. In the course of reviewing the registration statements of an EGC, the SEC staff has requested the EGCs submit any written test-the-waters materials to the SEC, so that the SEC staff can determine whether those materials would provide any guidance as to information that should be included in the prospectus. The SEC has addressed the interplay of these test-thewaters communications, and the requirements of Exchange Act Rule 15c2-8(e). 22 Rule 15c2-8(e) requires that a broker-dealer make available a copy of the preliminary prospectus (before the effective date) for a registered offering of securities before soliciting orders from customers. If read broadly, the prohibitions of Rule 15c2-8(e) might constrain the types of activities that are permissible during test-the-waters discussions. The FAQs note that while the JOBS Act does not amend Rule 15c2-8(e) (that is, the JOBS Act does not modify the meaning of the term solicit ), an EGC or a financial intermediary acting on the EGC s behalf may engage in discussions with institutional investors to gauge their interest in purchasing EGC securities before the EGC has filed its registration statement with the SEC and after the EGC has filed its registration statement. During this period, the underwriter may discuss price, volume and market demand and solicit non-binding indications of interest from customers. Soliciting such a non-binding indication of interest, in the absence of other factors, would not constitute a solicitation for purposes of Rule 15c2-8(e). The JOBS Act also permits a broker-dealer to publish or distribute a research report about an EGC that proposes to register an offering under the Securities Act or has a registration statement pending, and the research report will not be deemed an offer under the Securities Act, even if the broker-dealer will participate or is participating in the offering. Further, no SRO or the SEC may adopt or maintain any rule or regulation prohibiting a broker-dealer from publishing or distributing a research report or making a public appearance with respect to the securities of an EGC following an offering or in a period before expiration of a lock-up. 23 These provisions are discussed in greater detail in Chapter 8. Confidential review process for EGC IPO registration statements Title I provides that the SEC s staff must review all EGC initial public offering registration statements confidentially. 24 An EGC may confidentially submit a draft registration statement for an initial public offering for nonpublic review, provided that the initial confidential submission and all amendments are publicly filed with the SEC no later than 21 days before the issuer s commencement of a road show. 25 The SEC requires that confidential draft registration statements and amendments be submitted through the SEC s electronic filing system (known as EDGAR) using submission form types DRS and DRS/A, respectively. No filing fee is due at the time of submitting the draft registration statement. 26 A confidential submission of a draft registration statement is not required to be signed by the registrant or by any of its officers or directors, nor is it required to include the consent of auditors and other experts, as it is not filed with the SEC. 27 While Securities Act section 6(e)(1) requires that the initial confidential submission and all amendments thereto be publicly filed with the SEC not later than 21 days before the date on which the issuer commences a road show, the SEC notes that upon public filing, the previous confidential submissions are not required to be signed and do not require consents. 28 The SEC expects that any registration statement submitted for confidential review will be substantially complete at the time of initial submission, including a signed audit report, and the required exhibits (however, the registration statement itself is not required to be signed or to include the consent of auditors and other experts). The SEC will defer review any draft registration statement that is materially deficient. 29 The confidential submission of a draft registration does not constitute the filing of a registration statement for the purposes of the prohibition in Securities Act section 5(c) against making offers of a security in advance of filing a registration statement JOBS Act Quick Start 2014 update
20 Test-the-waters communications and the 21-day filing requirement Securities Act section 6(e) provides that confidential registration statement submissions must be publicly filed with the SEC at least 21 days before the issuer conducts a road show. The term road show is defined as an offer that contains a presentation regarding an offering by one or more members of the issuer s management and includes discussion of one or more of the issuer, such management, and the securities being offered. 31 Given the breadth of this definition, the SEC has addressed the issue of whether the test-the-waters communications under Securities Act section 5(d) that are discussed above could be considered a road show for the purposes of triggering the 21-day filing requirement. 32 The SEC has noted that in a traditional underwritten public offering where test-the-waters communications are not used, the road show could be easily identified as those meetings traditionally viewed as the road show when the emerging growth company and underwriters begin actively marketing the offering. Under these circumstances, the EGC would be able to estimate when it expects to begin that road show, and then publicly file the registration statement and all of the confidential submissions at least 21 days before that date. Because Securities Act section 5(d) specifically contemplates test-the-waters communications taking place before filing a registration statement, and in the interest of reading the provisions in a consistent fashion, the SEC will not object if an EGC does not treat test-the-waters communications conducted in reliance on Securities Act section 5(d) as a road show for purposes of Securities Act section 6(e). The SEC notes, however, that if an issuer were to have meetings or other communications that meet the definition of a road show and which do not fall within the test-the-waters communications contemplated by section 5(d), then the 21-day filing requirement would be triggered based on the timing of such meetings. If an EGC does not conduct a traditional road show and does not engage in activities that would come within the definition of a road show, other than test-the-waters communications that comply with Securities Act section 5(d), the SEC Staff indicates that the issuer s registration statement and confidential submissions should be filed publicly no later than 21 days before the anticipated date of effectiveness of the registration statement. 33 Registration statement disclosure for EGCs The SEC has indicated that an EGC must identify itself as an EGC on the cover page of the prospectus. 34 In addition, SEC staff comments on EGC registration statements have requested the following disclosures: a description of how and when a company may lose EGC status; a brief description of the various exemptions that are available to an EGC, such as exemptions from Sarbanes-Oxley section 404(b) and the Say-on-Pay/Sayon-Golden Parachute provisions; and the EGC s election under section 107(b) of the JOBS Act for extended transition to new or revised accounting standards. The SEC staff requests that if the EGC has elected to opt out of the extended transition period for new or revised accounting standards, then it must include a statement that the election is irrevocable. If the EGC has elected to use the extended transition period, then risk factor disclosure must explain that this election allows an EGC to delay the adoption of new or revised accounting standards that have different effective dates for public and private companies until those standards apply to private companies. The SEC staff also requests that the EGC state in the risk factors that, as a result of this election, the EGC s financial statements may not be comparable to issuers that comply with public issuer effective dates. A similar statement is also requested in the EGC s critical accounting policy disclosures in MD&A. An EGC is required to present only two years of audited financial statements in its initial public offering registration statement. 35 An EGC may also limit its MD&A to only cover those audited periods presented in the audited financial statements. The SEC has indicated that, notwithstanding Securities Act section 7(a)(2)(A) s reference to any other registration statement, the SEC staff will not object if an EGC presenting two years of audited financial statements limits the selected financial data included in its initial public offering registration statement to only two years. 36 For financial statements required under Rules 3-05 and 3-09 of Regulation S-X under the Securities Act (Regulation S-X), the SEC staff will not object if only two years of financial statements are provided in the registration statement, even if the significance tests result in a requirement to present three years of financial statements for entities other than the issuer. 37 The SEC staff has further noted that it will not object if an issuer presents the ratio of earnings to fixed charges required by Item 503(d) of Regulation S-K under the Securities Act (Regulation S-K) for the same number of years for which it provides selected financial data. 38 JOBS Act Quick Start 2014 update 19
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