The Staff of the Division of Corporation Finance of the U.S. Securities and Exchange Commission (the “SEC”) recently updated its Frequently Asked Questions on Title I of the Jumpstart Our Business Startups Act (“JOBS Act”) to address a number of issues regarding the applicability of the provisions in Title I to exchange offer, merger and spin-off transactions, as well as considerations for determining whether a company qualifies as an emerging growth company (an “EGC”) and the financial information that an EGC includes in certain filings. The SEC also recently implemented a process whereby an EGC can submit its draft registration statement for confidential review via the EDGAR system. In this regard, the Staff has provided additional guidance as to how EGCs with pending submissions can transition to the new EDGAR filing process.
Applicability of Title I Provisions to Merger and Exchange Offer Transactions -
While Title I of the JOBS Act appears to be largely focused on capital raising transactions, there is nothing in the JOBS Act or in the SEC’s interpretations to date to suggest that the “IPO on-ramp” provisions in Title I would not also apply in the context of other transactions conducted by EGCs on a registered basis. In its latest Frequently Asked Questions, the Staff indicates that EGCs will be able to rely on certain of the disclosure, communications and confidential submission benefits in the context of merger and exchange offer transactions. An overriding principle of the Staff’s guidance in the Frequently Asked Questions is that those EGCs who are avail themselves of the Title I provisions in the context of an exchange offer or a merger must comply with all of the pre-existing applicable rules for tender offers and proxy solicitations, which might, in some cases, conflict with the more liberal communications approach contemplated by Title I.
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