May 21, 2012

Jobs Act: More EGC Confidential Submissions Go Public

Last week, I blogged how LegalZoom was one of the first companies to announce its upcoming IPO after first submitting its registration statement under Corp Fin’s confidential submission policy and I analyzed the risk factors and other EGC-related disclosures in that Form S-1.

There have now been about a dozen Form S-1s filed by EGCs – most of them likely emerging from confidential submission but not all – including:

Blue Earth
Cimarron Software
Kythera Biopharmaceuticals
OncoMed Pharmaceuticals
Plesk Corp
Simple Products Corp
Supernus Pharmaceuticals

By the way, I disagree that EGC risk factors are a “turn-off” as mentioned in this article. As I wrote in my recently-posted “Risk Factors Handbook,” companies typically have between 20-30 risk factors in their disclosure – with IPOs having even more. Facebook has about 50. Do you think one more risk factor will even be noticed by the rare investor who bothers to read a prospectus?

I just announced an August 15th webcast – “JOBS Act Update: Where Are We Now” – that will analyze evolving market practices and the latest from the SEC. The program features Corp Fin Deputy Director Lona Nallengara, Steve Bochner, Joel Trotter, Michael Kaplan and Dave Lynn.

NYSE Proposes Listing Qualification Changes to Accommodate JOBS Act

In the “Dodd-Frank Blog,” Jill Radloff gives us this news:

The ripple effect of the JOBS Act is beginning to show as the NYSE has proposed to adjust its listing qualification standards to reflect that emerging growth companies, or ECGs, under the JOBS Act only need to present two years of audited financial statements.

In its rule filings, the NYSE notes that its initial listing standards require listing applicants to meet theapplicable financial criteria over a period of three fiscal years. As the staff of the NYSE bases its determination as to a company’s compliance with the financial initial listing standards only on publicly available audited financial data, an EGC which availed itself of the right to file only two years of audited financial data as part of its initial public offering registration statement or subsequent registration statements would be unable to qualify for listing under those particular financial listing standards. The NYSE proposes to amend the initial financial listing standards in Sections 102.01C and 103.01B to permit an EGC to meet the applicable standard on the basis of the two years of audited financial data actually reported, rather than the three years of financial data that would otherwise be required.

The proposed amendment would only be applicable to EGCs that actually avail themselves of their ability to report only two years of audited financial information. Under the proposed amendments, EGCs would still be required to meet the same aggregate financial requirements, but would be required to do so over a two-year period rather than a three-year period, if they have availed themselves of the JOBS Act provision allowing EGCs to file only two years of audited financial statements.

May-June Issue: Deal Lawyers Print Newsletter

This May-June issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on:

– Lessons Learned: Martin Marietta Materials vs. Vulcan Materials
– Delaware Chancery Enjoins Hostile Bid Based on Confidentiality Agreement Breach
– The JOBS Act: Implications for Private Company Acquisitions and M&A Professionals
– After the JOBS Act: The Increased Need for Common Sense
РGroping for Gold: $305 Million in Plaintiff Attorney Fee Awards Under Grupo M̩xico

If you’re not yet a subscriber, try a no-risk trial to get a non-blurred version of this issue on a complimentary basis.

– Broc Romanek