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The IPO on-ramp under the JOBS Act<br />
the right investment bank and counsel<br />
experienced in the industry and types of<br />
initial public offerings of the EGC.<br />
(b) Week 1<br />
Organizational meeting: The traditional<br />
organizational meeting would still occur<br />
in the case of an IPO for an EGC. However,<br />
if an EGC is uncertain of its ultimate<br />
timing for its IPO, it may decide to work<br />
more informally with a few underwriters<br />
to prepare for an eventual formal kickoff<br />
of the IPO process with the organizational<br />
meeting.<br />
(c) Weeks 2 to 5<br />
Drafting: The EGC would still prepare the<br />
same Form S-1 registration statement and<br />
prospectus. The drafting process is also<br />
largely the same as for traditional IPOs. In<br />
general, the contents of the document are<br />
same as those outlined in further detail in<br />
Section 3.2(d). The contents are different<br />
in the following ways:<br />
• The financial statements may include<br />
two (rather than three) years of audited<br />
financial statements and selected<br />
financial statement information for the<br />
previous two (rather than five) years.<br />
• The MD&A of the EGC’s performance<br />
need not cover more than the past two<br />
(rather than three) years plus any “stub”<br />
periods;<br />
• The compensation disclosure and<br />
analysis for executives need not include<br />
more information than is required of<br />
a smaller reporting company, meaning<br />
that the document need not include,<br />
among other things, compensation<br />
discussion and analysis or tabular<br />
information for more than three<br />
executive officers and may omit certain<br />
compensation-related tables such as<br />
the grant of plan-based awards, and<br />
option exercise tables; and<br />
• The EGC must make affirmative<br />
disclosure in the registration statement<br />
as to whether it will elect to “opt<br />
out” of new accounting standards<br />
that are not also applicable to private<br />
companies.<br />
Due diligence: The due diligence process<br />
for an IPO of an EGC is the same as that<br />
for traditional IPOs. Because this process<br />
is time-intensive, an EGC should consider<br />
its overall readiness to complete an IPO<br />
before embarking on the IPO process.<br />
Legal and other documentation: In<br />
addition to the prospectus, the EGC<br />
and underwriter’s counsel will work<br />
with the investment bank, the EGC and<br />
the auditors to draft and complete the<br />
documentation outlined in Section 3.1(b)<br />
(e.g., underwriting agreement, comfort<br />
letter, etc.) The primary differences in the<br />
documentation of traditional IPOs and<br />
those of an EGC include:<br />
• the underwriting agreement will<br />
contain additional representations<br />
and warranties relating to a company’s<br />
status as an EGC and representations<br />
and covenants relating to test-thewaters<br />
communications; and<br />
• the lock-up agreements for existing<br />
shareholders no longer need contain<br />
what are known as “booster shot”<br />
provisions—where the typical 180-<br />
day lock-up period can be extended if<br />
the EGC issues an earnings or other<br />
material press release or if material<br />
news about the EGC is released prior to<br />
the expiration of the lock-up period.<br />
Determine listing venue: The EGC should<br />
still determine earlier in the process<br />
whether it is eligible to list on the NYSE or<br />
other exchange and reserve a ticker symbol.<br />
(d) Week 6<br />
Confidential submission: An EGC<br />
may elect to submit a draft Form S-1<br />
registration statement to the SEC<br />
confidentially, rather than making a<br />
public filing. In general, draft registration<br />
statements submitted through the<br />
confidential submission process are the<br />
same as registration statements filed<br />
outside of it. However, they need not be<br />
signed or include the consent of auditors<br />
and other experts, although the EGC must<br />
provide a signed copy of the report of the<br />
independent registered public accounting<br />
firm with any submission. Confidential<br />
submissions must be made via the SEC’s<br />
EDGAR filing system with the tag “DRS”<br />
or, in the case of subsequent submissions,<br />
“DRS/A.” Once the initial public filing is<br />
made, there is no need to file the prior<br />
confidential submissions as exhibits, as the<br />
EDGAR system will automatically make<br />
those submissions public at the time of the<br />
initial public filing.<br />
Valuation update with the investment<br />
bank: As is the case in traditional IPOs, it is<br />
prudent to have relatively frequent valuation<br />
updates with the investment bank.<br />
(e) Weeks 7 to 8<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<br />
the contemplated offering of its securities.<br />
In addition to helping the EGC gauge<br />
investor interest in the offering, such<br />
communications could provide valuable<br />
information and experiences and impact<br />
the crafting of the marketing story for the<br />
impending roadshow.<br />
Roadshow presentation: The preparation<br />
of the roadshow presentation and the<br />
roadshow itself is not notably different for<br />
EGCs than it is for companies engaging<br />
in traditional IPOs. Before finalizing the<br />
key roadshow messages, the EGC has the<br />
ability to take advantage of the testing-thewaters<br />
provisions of the JOBS Act to help<br />
further refine the roadshow messaging.<br />
Discuss offering structure: The EGC and<br />
the investment bank should determine if<br />
there will be more than sufficient investor<br />
demand for the contemplated offering<br />
of its securities so that the EGC can<br />
determine whether to make the decision<br />
to publicly file the registration statement.<br />
The EGC should also solicit interest from<br />
selling shareholders on any potential<br />
shares that they may want to sell as part<br />
of the IPO in accordance with any notice<br />
requirements to the shareholders.<br />
(f) Weeks 9 to 13<br />
Receiving and addressing SEC comments:<br />
The SEC comment process for confidential<br />
submissions takes a similar amount of<br />
time as for traditional IPOs—with the<br />
SEC taking approximately 30 days to<br />
review and provide comments on the<br />
initial submission. Subsequent rounds<br />
of comments can take a range of time,<br />
depending on the complexity of the issues<br />
and additional disclosures included by<br />
46 NYSE IPO Guide