Latham & Watkins March 6, 2014 | Number 1244 | Page 31
27
For a comprehensive discussion of the law and lore around pricing outside the range, see our Client Alert “Upsizing and
Downsizing Your IPO,” available at http://www.lw.com/upload/pubContent/ pdf/pub3611 1.pdf
.
28
Inelig ble issuers include blank check companies and shell companies, while ineligible offerings include business combinations.
See Rule 164(e), (f) and (g).
29
Securities Offering Reform Release at 111-12.
30
Id.
31
See Securities Act Rules C&DI, Question 232.02.
32
Securities Offering Reform Release at n.267.
33
See id. at n.206.
34
See id.
35
See Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings,
Release No. 33-9415 (July 10, 2013) (General Solicitation Adopting Release). For a comprehensive discussion of these rule
changes, see our Client Alert “‘You Ta kin’ to Me?’ FAQs About the SEC’s New General Solicitation, Regulation D and Bad
Actor Rules,” available at http://www.lw.com/thoughtLeadership/general-solicitation-reg-d-faq
.
36
See Amendments to Regulation D, Form D and Rule 156, Release No. 33-9416 (July 10, 2013).
37
Securities Act Rule 902(c)(1).
38
Securities Act Rule 902(c).
39
Final Rule: Offshore Offers and Sales, Release No. 33-6863, text accompanying n.64 (Apr. 24, 1990).
40
Id., text accompanying n.145.
41
See General Solicitation Adopting Release at 58.
42
Many market participants also restrict the number of testing-the-waters meetings held.
43
See Securities Offering Reform Release at 92 and n.211.
44
Id. at 85 and n.188.
45
For an overview of the issues that need to be considered in connection with a directed share program, see our Words of
Wisdom blog entry “Taking Sides with the Family – Directed Share Programs,” available at
http://www.wowlw.com/initial-public-
offerings/taking-sides-with-the-family---directed-share-programs/.
46
See SEC v. Manor Nursing Centers, 458 F.2d 1082, 1095-1096 (2d Cir. 1972).
47
Securities Offering Reform Release at n.561; see also SEC Division of Corporation Finance, “Securities Offering Reform
Frequently Asked Questions,” Question 23 (Nov. 30, 2005).
48
Securities Offering Reform Release at n.155.
49
Id. at 66-67.
50
An analyst employed by an underwriting firm participating in the offering cannot attend (other than in “listen-only” mode from a
remote location) the road show for the offering under FINRA rules.
51
As a technical matter, Regulation FD may not apply here because Rule 100(b)(2)(iii) of Regulation FD provides an exclusion
from FD’s requirements for disclosure made in connection with road shows for certain registered securities offerings. However, it
is not typical to rely on that exclusion based on principles of equal disclosure. The safer course is to proceed as if Regulation FD
applies.
52
For a thorough discussion of earnings guidance, including practice points and answers to frequently asked questions, see our
Client Alert “Giving Good Guidance: What Every Public Company Should Know,” available at
http://www.lw.com/thoughtLeadership/giving-good-guidance-public-company
.
53
Securities Offering Reform Release at n.292.
54
Id. at n.297.
55
Final Rule: Offshore Offers and Sales, Release No. 33-6863 at n.64 and accompanying text (Apr. 24, 1990).
56
Securities Act Rule 405 (defining “Well-Known Seasoned Issuer,” ¶ (1)).
57
Id. at ¶ (2). For purposes of determining whether an issuer qualifies as a WKSI, the determination date is the later of: (1) the
time of filing of the issuer’s most recent shelf registration statement; (2) the time of the most recent amendment to its shelf
registration statement for purposes of satisfying Section 10(a)(3); or (3) the date of filing the issuer’s most recent annual report
on Form 10-K or Form 20-F (if it has not filed a shelf registration statement for 16 months).
58
“Ineligible issuers” include those that: (1) are not current in their Exchange Act reporting obligations (other than certain
enumerated Form 8-K filings); (2) are blank check companies, shell companies, penny stock issuers or limited partnerships
offering other than through a firm commitment underwriting; (3) have filed for bankruptcy within the past three years, although
ineligibility will terminate if an issuer has filed an annual report with audited financial statements subsequent to its emergence