Recently the SEC's Division of Corporation Finance posted certain additional JOBS Act-related FAQs. The new FAQs, numbered 42 to 54, address a variety of JOBS Act-related issues. Some of the more notable FAQs in this new release include:
- FAQ 43, which provides that an emerging growth company (EGC) may use the confidential submission process in Section 6(e) of the Securities Act to submit a draft registration statement for an exchange offer or merger that constitutes its initial public offering (IPO).
- FAQ 48, which provides that an EGC that has not yet conducted an IPO but is required to register a class of equity securities under Section 12(g) of the Exchange Act because it has more than $10 million in assets and 2,000 or more holders of record as of the end of its most recent fiscal year, must provide three years of financial statements in its registration statement on Form 10 unless it is a smaller reporting company. This is because Section 7(a)(2)(A) of the Securities Act, which permits two years of financial statements, applies only to the registration statement for the IPO.
- FAQ 52, which provides that upon the public filing of the initial confidential submission of a registration statement and all amendments as required by Section 6(e)(1) of the Securities Act, the previous confidential submissions are not required to be signed or to include consents.
- FAQ 53, which provides that when a parent that does not qualify as an EGC decides to either spin-off a wholly owned subsidiary, to register an offer and sale of the wholly owned subsidiary's common stock for an IPO, or to transfer a business into a newly formed subsidiary for purposes of an IPO of that subsidiary's common stock, the subsidiary may still qualify as an EGC because, in general, the analysis to determine whether an issuer is an EGC focuses on whether the issuer, and not its parent, meets the requirements of an EGC.
- FAQ 53, which provides that an issuer that was once an Exchange Act reporting company but is not currently required to file Exchange Act reports that is now planning to conduct a public offering can take advantage of the benefits of EGC status, even though its IPO occurred on or before December 8, 2011, if it would otherwise qualify as an EGC but for the fact that its IPO occurred on or before December 8, 2011.
The Division of Corporation Finance also recently posted a "Sample Letter Explaining Transition to EDGAR Submission and Filing of Draft Registration Statements" that was sent to companies whose draft registration statements were under staff review. The letter (see link below) explains how such companies can transition to electronic filing via EDGAR for their draft registration statements.