xavGE
xavGE
xavGE
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
The IPO on-ramp under the JOBS Act<br />
(c) Scaled disclosures<br />
EGCs may “scale back” financial and<br />
compensation disclosures in their IPO<br />
registration statements and subsequent<br />
filings under the Exchange Act. In particular,<br />
IPO registration statements for EGCs may<br />
contain:<br />
• two years of audited financial<br />
statements, including those of acquired<br />
businesses, rather than the three-year<br />
requirement described in Section 2.2(a);<br />
• selected financial information for the<br />
years including and after the earliest<br />
audited period presented (i.e., as little<br />
as two years of selected financial<br />
information), rather than the five-year<br />
requirement described in Section 2.2(a);<br />
• MD&A for the periods covered by the<br />
audited financial statements (i.e., as<br />
little as two years plus “stub” periods),<br />
rather than the periods described in<br />
Section 3.3(a); and<br />
• the streamlined and simplified<br />
compensation disclosures required of<br />
smaller reporting companies, meaning<br />
that that the registration statement<br />
need not include, among other things, a<br />
detailed compensation discussion and<br />
analysis section or tabular information<br />
for more than three executive officers and<br />
certain executive compensation tables.<br />
With respect to the scaled executive<br />
compensation disclosure requirements,<br />
EGCs must still consider whether there<br />
is additional, material compensation<br />
disclosure that would be useful to<br />
investors to understand how the EGC’s<br />
executive compensation programs operate.<br />
EGCs may follow all or some of these<br />
“scaled” disclosure provisions, except in<br />
their initial filing or submission they must<br />
decide whether to take advantage of the<br />
extended transition period for complying<br />
with any of the FASB’s updates to its<br />
Accounting Standards Codification. If an<br />
EGC decides to take advantage of such an<br />
extended transition period, it may later<br />
choose to reverse its election. Although<br />
the JOBS Act refers to domestic company<br />
rules and forms, a foreign private issuer<br />
that qualifies as an EGC may comply with<br />
the scaled disclosure provisions to the<br />
extent relevant to the form requirements<br />
for foreign private issuers.<br />
While these changes are designed to<br />
reduce costs, EGCs may find that providing<br />
the traditional level of historical financial<br />
disclosure is helpful in the IPO marketing<br />
process. In the first year subsequent to the<br />
enactment of the JOBS Act, most EGCs<br />
have still presented financial statements<br />
for a full three years and also five years of<br />
selected financial data.<br />
(d) Test-the-waters communications<br />
As discussed in Section 3.2(b), issuers<br />
must avoid illegal offers and not engage in<br />
communications and activities that might<br />
be viewed as impermissibly affecting the<br />
market for the securities to be offered. The<br />
JOBS Act amends Section 5 of the Securities<br />
Act to add a new Section 5(d), which<br />
permits EGCs to engage in oral and written<br />
communications with institutional or highly<br />
sophisticated prospective investors to gauge<br />
their interest in a contemplated securities<br />
offering before or during the “quiet period”<br />
or during the “waiting period” described in<br />
Section 3.2(a). These communications are<br />
not a substitute for the traditional roadshow<br />
and book-building processes described in<br />
Section 3.4(b) and (c). While practices in<br />
this area are evolving, issuers should pay<br />
careful attention to the timing, content and<br />
delivery mechanism of each communication.<br />
In particular, written communications are<br />
subject to SEC review and could complicate<br />
the IPO process if they are inconsistent with<br />
the prospectus or roadshow presentation.<br />
The SEC has been requesting copies of any<br />
“testing-the-waters” communications made<br />
in reliance on Section 5(d) as well as any<br />
research reports.<br />
(e) Other benefits<br />
The “IPO on-ramp” provisions make<br />
becoming a public company more attractive<br />
by reducing costs and burdens for EGCs<br />
after they go public, often by simplifying<br />
and streamlining disclosures. One of the<br />
most significant of these benefits is an<br />
exemption from the requirement contained<br />
in Section 404(b) of SOX to obtain an<br />
internal controls attestation and report from<br />
a registered independent public accounting<br />
firm while the issuer remains an EGC. For<br />
many, perhaps most, companies seeking to<br />
complete an IPO, this will delay by at least<br />
three years the need to comply with this<br />
requirement of SOX. It should be noted,<br />
however, that, as explained in Chapter 2,<br />
EGCs will still be required to establish and<br />
maintain disclosure controls and procedures<br />
and internal controls, and their principal<br />
executive officer and principal financial<br />
officer will still be required to certify Form<br />
10-Q and 10-K filings.<br />
4.3 Process timeline<br />
Fenwick & West LLP<br />
The time-intensive process of submitting<br />
confidentially and executing an IPO as<br />
an EGC can take the 12 to 16 weeks from<br />
initial filing to effectiveness it typically<br />
takes for a non-EGC issuer to complete<br />
the process described in Section 3.1.<br />
As with IPOs of non-EGC issuers, the<br />
exact time taken to complete an IPO for<br />
an EGC can vary widely and depends on<br />
market conditions, the complexity of the<br />
transaction, the EGC’s readiness prior to<br />
embarking on the IPO process and many<br />
other factors. Like the process outlined in<br />
Section 3.1, the IPO process for EGCs can<br />
be broken down into the following stages.<br />
(a) Prior to official IPO process launch<br />
Decision to go public: While the EGC<br />
should still evaluate its internal readiness,<br />
including industry position and growth<br />
prospects, it also has the flexibility to<br />
assess investor interest in a contemplated<br />
offering of its securities, to determine<br />
whether it is ready to go public.<br />
Testing the waters: The EGC and its<br />
advisors should consider whether to<br />
engage in test-the-waters communications<br />
with “qualified institutional buyers” or<br />
“accredited investors” to gauge interest in a<br />
contemplated offering of its securities.<br />
Internal controls: Once the decision has<br />
been made to prepare for an IPO, the<br />
EGC should still take the actions other<br />
issuers take: select an appropriate board of<br />
directors, prepare audited financials (with<br />
a qualified independent registered public<br />
accounting firm), and begin establishing<br />
internal controls.<br />
Selection of advisors: The EGC should still<br />
carefully select its IPO advisors, including<br />
NYSE IPO Guide<br />
45