3. 1Best practices when going through the IPO registration process August 2016 |
Understanding the process
Timelines, deadlines
and the SEC comment letter process
Companies contemplating an IPO should have a good understanding
of the process and the time required to complete each step. That
is, you should understand the deadlines for SEC filings, when
your financial statements “go stale,” when the SEC staff issues
comment letters and when you will finally get to price your IPO.
Creating a realistic timetable can help you manage expectations,
plan the process and anticipate potential problems. For example, if
the offering is delayed, a company may need to amend its filing to
include additional periods of financial statements that may need to
be reviewed (for comfort letter purposes) or audited. A company
that updates its financial statements also may need to address new
comments from the SEC staff. This could cause a company to miss a
window of opportunity in the IPO market.
The SEC staff review process begins when the SEC receives the
first submission or filing, regardless of whether it is a public filing
or a confidential filing that EGCs and certain foreign private issuers
can choose to make. Companies generally can expect to receive
the first round of SEC comments within one month of submitting a
registration statement. The SEC staff typically responds more quickly
to subsequent amendments, but companies should plan on waiting
a week or more for a comment letter on pre-effective amendments.
While all comments must be resolved prior to the IPO registration
statement being declared effective, most companies seek to have
significant comments resolved prior to launching a road show. The
staff will provide the company with a letter to confirm that its review
of the filing is complete.
The review process will be most efficient if companies follow a well-
organized process and include all members of the IPO working group
and professional advisers (e.g., legal counsel and external auditors)
when developing responses to the SEC staff comment letters. This
increases the likelihood that the company will develop full and
accurate responses that successfully resolve the staff’s comments or
requests for revisions.
Involving advisers early on may help a company avoid multiple
rounds of comments from the staff. In our experience, companies
that develop well-crafted first responses that directly address the
SEC staff’s questions can resolve SEC comment letters in less time
than those that submit a series of hasty responses. The staff is open
to discussing its comments in a conference call to avoid confusion
and help guide companies on the best path to resolution; however,
the staff cannot clear comments over the phone. While companies
may engage the SEC staff in a dialogue at any time, we find that
conference calls are most valuable when only a few matters are
left to resolve.
The Appendix provides a timeline of important SEC filing deadlines for
additional information that you may need.
Average number of days from initial submission to IPO date
Non-EGCs
EGCs not submitting confidentially
EGCs submitting confidentially
IPOs take an average of 110 days to 140 days
to complete once you’re in the door of the
SEC. Non-EGCs are typically at the lower end
of the range, and EGCs take slightly longer.
For companies that need IPO proceeds to fund
operations or launch new strategies, timing
is crucial. For this reason, companies should
be well prepared to deal with potential pitfalls
along the way.100
114 days
124 days
134 days
140130120110
Overview
If your company is planning an initial public offering (IPO), you need to be aware of potential roadblocks that can prolong the
registration process.
You also should be aware of the relief provided by the Jumpstart Our Business Startups Act (JOBS Act), which was enacted in 2012 to make
it easier for companies that meet the definition of an emerging growth company (EGC)1
to go public. Currently, more than 80% of companies
filing an IPO registration statement are EGCs, and they take advantage of various available relief provisions, but the IPO process can still
be daunting.
All companies embarking on an IPO must comply with the accounting and disclosure requirements in US GAAP that apply to public companies,
as well as the rules and regulations of the US Securities and Exchange Commission (SEC). In many cases, complying with these requirements
will require a change in practice for private companies.
This publication highlights common areas where companies get sidetracked in the registration process and recommends ways for companies
and their advisers to effectively navigate the process.
4. 2 | Best practices when going through the IPO registration process August 2016
Engage the SEC early
Companies that are uncertain about the SEC staff’s view on the
application of US GAAP or IFRS in a specific fact pattern should
consider seeking formal preclearance of their accounting conclusions
with the Office of the Chief Accountant. Issues involving revenue
recognition, consolidation and classification of financial instruments
as debt or equity are commonly pre-cleared with the SEC. Similarly,
companies seeking relief or guidance on compliance with the
SEC’s financial reporting requirements (e.g., whether to include an
acquiree’s financial statements or those of an investee) should submit
written requests to the Chief Accountant’s Office in the Division of
Corporation Finance.
Resolving these issues may take a few weeks, but engaging with
the staff early in the process is often less time consuming and
requires less effort than dealing with these kinds of issues when the
registration statement is in review. For example, a company may have
to restate its historical financial statements or obtain an audit of the
financial statements of an investee or an acquired company, which
could delay the IPO process.
At the outset, companies also should inform the SEC examiners
assigned to their IPO documents about any previous correspondence
they have had with other staff members in the Division of Corporation
Finance or the Office of the Chief Accountant. The examiners can
review documents more efficiently if they know about conclusions
already reached by other members of the SEC staff.
Avoiding common pitfalls
Submit a substantially complete registration statement
One common pitfall is submitting an incomplete registration
statement. Companies should be aware that the SEC staff expects
registration statements, including those submitted confidentially, to
be substantially complete. At the time of submission, the registration
statement should include all disclosures, exhibits, financial statements
and financial statement schedules required by the Securities Act of
1933 (the 1933 Act). That means following the rules on the form and
content of financial statements required by Regulation S-X, including
those of acquired businesses and those to be acquired2
and those of
significant equity investees,3
and the instructions for nonfinancial
disclosures required by Regulation S-K.
If a company fails to submit a complete filing, the SEC staff can refuse
to review it, which is sometimes referred to as “bed bugging” a filing,
or it can “restart the clock” once the deficiencies are corrected,
either of which can significantly delay an IPO. Proper planning
will help reduce the likelihood of either of these events occurring.
Companies that want to submit incomplete filings should discuss
the matter in advance with the SEC staff, unless they are using the
following exception provided for under the Fixing America’s Surface
Transportation Act (FAST Act).
EGCs’ use of JOBS Act relief 2015*
EGCs that file confidentially 93%
Disclosed two years of audited financial statements* 67%
Disclosed two years of selected financial data** 56%
Provided compensation information for fewer than five
executive officers***
97%
*From inception of JOBS Act in April 2012 to December 2015.
**Excludes smaller reporting companies and companies with a reporting history of less
***Excludes smaller reporting companies and foreign private issuers.
The FAST Act, which was enacted in December 2015, amended the
JOBS Act to, among other things, allow an EGC to omit the earliest
year of financial statements in a filing if it reasonably believes (1)
those financial statements will not need to be included when the
filing goes effective and (2) all required information is included in the
effective filing and red herring prospectus. For example, an EGC that
makes its first filing in the fourth quarter of 20X6 and expects the
registration statement to be effective in the spring of 20X7 can omit
the 20X4 financial information from its preliminary filing.
Pro forma financial information
Pro forma financial information may be required in an IPO registration
statement for various reasons,4
including showing the effects of
significant consummated or probable acquisitions or dispositions. Pro
forma adjustments are often a source of significant judgment and an
SEC staff focus area. It is important for management to determine
whether pro forma financial information will be needed and to allow
enough time to prepare such information and make sure it complies
with Article 11 of Regulation S-X.
Registrants must also consider the SEC’s pro forma guidance for
initial registration statements. When IPO proceeds are used to pay
dividends to the issuer’s prior owners, promoters and/or parents,
Staff Accounting Bulletin (SAB) Topic 1-B.3 requires registrants to
evaluate whether the IPO filing should present pro forma earnings per
share (EPS) or a pro forma balance sheet on the face of the financial
statements. If the dividends are not reflected in the latest balance
sheet, the registrant should provide a pro forma balance sheet on the
face of the historical financial statements to reflect an accrual, with
an offsetting amount to retained earnings. In addition, the SAB Topic
requires the presentation of pro forma EPS if dividends paid at or
before the closing of an IPO exceed earnings for the most recent year.
When a company first prepares its IPO filing, it may not be able
to quantify all pro forma adjustments (e.g., those affected by the
offering price or number of shares issued). In these cases, the
company should be sure to include placeholders so it can add the
adjustments when they become available.
For further information, please see EY’s SEC Financial Reporting
Series: Pro forma financial information.
than two years.
5. 3
Predecessor entity determination
IPO structures in recent years have become more complex, and in
transactions such as those involving an “Up-C” structure, a “put-
together” of multiple entities or a carve-out of operations from
another company, the registrant may need to determine whether
any entity is a predecessor entity, as defined in Rule 405 of
Regulation C, and if so, which entity or entities. In these situations,
more information must be provided for the predecessor (i.e., the
same information as for a registrant), including separate schedules,
selected financial data, management’s discussion and analysis
(MD&A) and other disclosures required under Regulation S-K.
Delays may result because the audit of a predecessor’s financial
statements must be conducted under the standards of the Public
Company Accounting Oversight Board (PCAOB). The audit will also
need to cover any stub period up to the acquisition or succession
date, and issues such as compliance with additional SEC and PCAOB
auditor independence requirements could cause additional delays and
add to costs.
Identifying the predecessor is a matter of judgment and is based on
whether an acquired business will be the main driver of the combined
entities’ business or operations.
Companies should consider the following observations when
determining the predecessor company:
• Factors to consider include the order in which the entities were
acquired (i.e., which entity was acquired first), the size and fair
value of the entities and the ongoing management structure. None
of these factors is determinative, and all facts and circumstances
should be evaluated.
• It is rare not to identify a predecessor, even if a NewCo is
determined to be the accounting acquirer.
• It is possible to identify more than one predecessor entity.
Due to the significant judgment required in identifying a predecessor,
companies should allow plenty of time to prepare and review financial
statements they plan to submit to the SEC. They should also consider
seeking preclearance from the SEC staff to avoid potential delays.
Other entity financial statements
Audited financial statements of significant acquired businesses,
probable business acquisitions and significant equity method
investees must be included in an IPO registration statement. Because
obtaining these financial statements can require considerable effort,
entities should consider these requirements in the planning process.
Trying to obtain financial statements for other entities during the IPO
process could cause delays.Companies can make written requests
to the SEC staff for waivers from the requirement to provide audited
financial statements of other entities if they believe that providing
these statements isn’t reasonably necessary to inform investors.
However, the SEC staff grants waivers only in rare circumstances
(e.g., when obtaining the financial statements would be an undue
hardship and the results of the significance tests overstate the
materiality of the financial information). Companies should also
determine whether relief from providing acquired business financial
statements is available through the application of SAB Topic 1.J.
The SEC staff recognized that if S-X Rule 3-05 were applied literally,
financial statements could be required in IPO registration statements
for several acquired businesses that are immaterial to investors
because of substantial growth in the registrant’s assets and earnings
in recent years. Therefore, applying SAB Topic 1.J may reduce
a company’s filing requirements, either by eliminating the audit
requirements or by reducing the number of years required for audited
financial statements of acquired businesses.
Cheap stock considerations
The SEC staff continues to challenge the valuation of share-based
payment awards issued in the 12 months before an IPO when the
securities’ fair value was significantly lower than the anticipated IPO
price (commonly referred to as cheap stock). Companies should be
aware of the AICPA’s Accounting and Valuation Guide, Valuation of
Privately-Held-Company Equity Securities Issued as Compensation,
which provides a framework and describes best practices for valuing
private company securities. Companies contemplating IPOs should
obtain contemporaneous valuations from independent valuation
specialists to support the fair value of securities issued in the period
leading up to an IPO.
6. 4 | Best practices when going through the IPO registration process August 2016
The SEC’s Financial Reporting Manual states that companies should
disclose all of the following information on share-based compensation
in the financial statements included in an IPO filing:
• The methods used to determine the fair value of the company’s
shares and the material assumptions used in determining the
fair value
• The extent to which such estimates are considered highly complex
and subjective
• That such estimates will not be necessary for new awards once the
shares begin trading
In many cases, the accounting for stock compensation while a
private company will represent a critical accounting estimate, and
the company’s MD&A should discuss the material assumptions and
describe the methodology used and judgments made, highlighting the
level of complexity and how subjective they are.
If the company receives a comment letter from the SEC staff,
management should first determine whether the staff is seeking
additional disclosure or requesting evidence of milestones and
significant events to support the changes in fair value at each grant
date leading up to the IPO (i.e., support for the contemporaneous
valuations). To more efficiently resolve questions about the
valuations, companies should contemporaneously document
consideration and the reasons for changes in fair value that occur
between valuation dates and the determination of a price range for
the IPO, including third-party transactions and key milestones.
Segment disclosures
In recent years, the SEC staff has renewed its focus on segment
disclosures in all filings. For companies going through the IPO
process, this means more scrutiny of disclosures they are making
for the first time. The challenge of first-time segment reporting is
compounded when there are organization changes in preparation
for the IPO. The SEC staff often challenges whether a company has
appropriately identified the chief operating decision maker (CODM)
and its operating segments and appropriately aggregated operating
segments (with a particular focus on the qualitative criteria). The
SEC staff often requests that the company explain how it made those
determinations. The SEC staff often focuses on the organizational
structure, the financial information used by the CODM in running the
business and the process used by the CODM in allocating resources
and assessing performance.
Companies should carefully evaluate any conclusions they reach
on operating segments that are inconsistent with their basic
organizational structure and the level of disaggregation used by the
CODM in making key operating decisions. In addition, companies
should consider all public information (e.g., on websites, in press
releases) and confirm that their segment conclusions are consistent
with both their operations and their public communications.
Non-GAAP financial measures
The SEC staff recently increased its focus on compliance with the
presentation and disclosure requirements when companies disclose
non-GAAP financial measures. As a reminder, all public companies are
prohibited from presenting non-GAAP financial measures in ways that
are misleading or given greater prominence than GAAP measures.
These prohibitions apply to both the order of presentation and the
degree of emphasis. The SEC staff recently updated its guidance on
the use of non-GAAP measures and identified certain uses that the
staff considers misleading or providing undue prominence.
To avoid staff comments about non-GAAP financial measures,
companies planning IPOs should include clear and specific disclosure
of why a particular non-GAAP measure is useful for investors and how
it is used by management. The statements a company makes about
non-GAAP measures during the IPO process may signal how it plans
to communicate with investors in the future; therefore, it is important
that non-GAAP disclosures in the IPO registration statement be given
careful consideration.
Our Technical Line publication, Spotlight on non-GAAP financial
measures, and our To the Point publication, SEC staff updates
guidance on non-GAAP financial measures, discuss the SEC rules and
the staff’s new guidance and heightened focus.
7. 5
Other SEC comment areas
The SEC staff issues comments on a variety of other issues and
requests additional information when it believes that a company
planning an IPO may not have complied with SEC disclosure
requirements or omitted information that may be material to
investors. While any comment might cause a major delay, companies
planning IPOs should carefully consider their disclosures in the
following five most frequent SEC staff comment areas for IPOs.
Ranking* 12 months ended
1 May
Comments area 2016 2015
Risk factors 1 3
Management’s discussion and
analysis
2 1
Signatures, exhibits and agreements 3 2
Related party disclosures 4 4
Use of proceeds 5 5
* Based on comment letter topic taxonomy, excluding topics related to the terms of the
offering or general updating of prospectus information, according to research firm Audit
Analytics for SEC comment letters issued to companies on their Form S-1 registration
statements from 1 April 2015 through 1 May 2016.
Risk factors – Item 503(c) of Regulation S-K requires a registrant
to disclose its significant risks and how it is affected by each of
them. Risk factors should be specific to the registrant’s facts and
circumstances and should be not general risks that could apply to any
registrant. The SEC staff commonly questions risk-factor disclosures
that could apply to any public company. It also may question the
completeness of a registrant’s risk-factor disclosures based on
information included elsewhere in the document or other
public information.
Management’s discussion and analysis – The SEC staff often requests
that registrants explain the results of their operations with greater
specificity, including identifying underlying drivers for each material
factor that has affected their earnings or that is reasonably likely to
have a material effect on future earnings. SEC staff comments often
question the significant components of expenses and provisions.
The SEC staff also has increased its focus on performance metrics,
including whether registrants have disclosed key metrics monitored
by management and how those metrics correlate to material changes
in the results of operations.
Signatures, exhibits and agreements – The SEC staff may question
the completeness and adequacy of exhibits, consents, audit reports
and management signatures filed by a registrant as required by
various rules and regulations. In particular, we often see the SEC staff
inquiring about the omission of material contracts that must be filed
as exhibits to registration statements. A company may need to amend
its filing to resolve these questions.
Related party disclosures – The SEC staff may request that
registrants clarify or expand their disclosures about related party
transactions, as required by Item 404(a) of Regulation S-K. Item
404(a) requires a registrant to describe both actual and proposed
transactions exceeding $120,000 since the beginning of its last fiscal
year in which any related party had or will have a direct or indirect
material interest. The SEC staff expects the description of a related
party transaction to summarize the nature of the transaction in
quantitative and qualitative terms and to include any other
material information.
Use of proceeds – Item 504 of Regulation S-K requires registrants
to describe the planned uses and amounts of offering proceeds.
These disclosures should give users the ability to understand the
major areas for which the funds will be used, including whether any
proceeds will be used to discharge debts, to complete an acquisition
or for working capital. The SEC staff may request that a company
provide additional details about how it will use proceeds from the
offering, particularly when other disclosures in the filing imply a use
omitted from the Item 504 disclosures.
Please see our SEC Comments and Trends: An analysis of current
reporting issues publication for more information.
1
An EGC is defined as a company with “total annual gross revenues” (i.e., total revenues
presented on the income statement in accordance with US GAAP) of less than $1 billion
in its most recently completed fiscal year.
2
Regulation S-X 3-05, Financial statements of businesses acquired or to be acquired.
3
Regulation S-X 3-09, Separate financial statements of subsidiaries not consolidated and
50 percent or less owned persons.
4
Pro forma information may be needed to show the effects when a significant business
combination has been consummated or is probable, to show the use of proceeds for
a particular transaction or to show the registrant as an autonomous entity when it
previously was part of another entity. Other examples of when pro forma information
might be needed include distributions of excess earnings, changes to capitalization or tax
status or significant distributions otherwise not yet reflected in the historical
financial statements.
8. Do your financial
statements need updating?
2016 dates to remember1
Appendix | Best practices when going through the IPO registration process August 2016
Effective registration
statement should include
the following:
2015 year-end financial
statements for IPOs (other than
SRCs), delinquent filers and
loss corporations2
2015 year-end financial
statements for large
accelerated filers3
2015 year-end financial
statements for accelerated filers3
2015 year-end financial
statements for all other filers
and SRCs4
filing an IPO
2016 interim year-to-date
financial statements for
large accelerated filers and
accelerated filers3
2016 interim year-to-date for all
other filers
Federal Holiday
April
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December
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January
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31
August
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28 29 30 31
September
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May
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November
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28 29
9. Appendix
Additional resources and footnotes
Find additional IPO and other thought leadership such as The JOBS Act: 2015 mid-year
update and Technical Line, IPO financial statement accounting and disclosure considerations,
on EY AccountingLink at http://www.ey.com/US/Accountinglink.
Notes
1
In order for a registration to be deemed effective, the financial statements included must
be kept up to date depending on the company’s filing status. The symbols in the calendar
indicate what financial statements must be included in a calendar year-end company’s
registration statement at different points of the year. The dates include the permitted
extension to the next business day where they would otherwise fall on a weekend or holiday.
(Securities Act Rule 417)
2
A “Delinquent Filer” is a registrant that has not filed all required reports.
A “Loss Corporation” does not expect to report positive income after taxes but before
extraordinary items and the cumulative effect of a change in accounting principle for the
most recently ended fiscal year and did not do so for at least one of the two prior fiscal years.
3
Assumes that the filer is not a Loss Corporation or Delinquent Filer.
“Large Accelerated Filer” – an issuer (a) with an aggregate worldwide market value of voting
and non-voting equity held by non-affiliates of $700 million or more (as of the last business
day of the issuer’s most recently completed second fiscal quarter); (b) has been subject to the
requirements of Section 13(a) or 15(d) for at least 12 calendar months; and (c) has filed at
least one annual report pursuant to Section 13(a) or 15(d).
“Accelerated Filer” – an issuer with a market value greater than $75 million, but less than
$700 million that meets the (b) and (c) criteria outlined in “Large Accelerated Filers” above.
An issuer will maintain its filing status until the end of the fiscal year in which it meets the
criterion for exiting its applicable status (less than $500 million and more than $50 million for
Large Accelerated Filers and less than $50 million for Accelerated Filers, calculated as of the
last business day of the issuer’s most recently completed second fiscal quarter). (Exchange
Act Rule 12b-2)
4
“Smaller Reporting Company (SRC) ” – an issuer with public float (or anticipated public
float based on anticipated IPO shares and price) of less than $75 million, or, if no public float,
annual revenues of less than $50 million during the most recently completed fiscal year.
(Exchange Act Rule 12b-2)
Staleness dates do not always align with periodic reporting deadlines. The SEC staff typically
allows for the filing or effectiveness of a registration statement during these gap periods
for timely filers (i.e., those that have filed all necessary Exchange Act reports for the past
12 months). This effectively makes the staleness date the same as the periodic reporting
deadline. For example, the 2016 third quarter 10-Q is due on 9 November for Large
Accelerated Filers , and the SEC staff might allow a registration statement to go effective on
8 November prior to the 10-Q filing provided the issuer has been a timely filer.
10. Do your financial
statements need updating?
2017 dates to remember1
Appendix | Best practices when going through the IPO registration process August 2016
Effective registration
statement should include
the following:
2016 year-end financial
statements for IPOs (other than
SRCs), delinquent filers and
loss corporations2
2016 year-end financial
statements for large
accelerated filers3
2016 year-end financial
statements for accelerated filers3
2016 year-end financial
statements for all other filers
and SRCs4
filing an IPO
2017 interim year-to-date
financial statements for
large accelerated filers and
accelerated filers3
2017 interim year-to-date for all
other filers
Federal Holiday
April
S M T W T F S
1
2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
30
March
S M T W T F S
1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30 31
February
S M T W T F S
1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28
September
S M T W T F S
1 2
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10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
July
S M T W T F S
1
2 3 4 5 6 7 8
9 10 11 12 13 14 15
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23 24 25 26 27 28 29
30 31
October
S M T W T F S
1 2 3 4 5 6 7
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15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31
June
S M T W T F S
1 2 3
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28 19 20 21 22 23 24
25 26 27 28 29 30
December
S M T W T F S
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31
January
S M T W T F S
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31
May
S M T W T F S
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28 29 30 31
August
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27 28 29 30 31
November
S M T W T F S
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5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30
11. Appendix
Additional resources and footnotes
Find additional IPO and other thought leadership such as The JOBS Act: 2015 mid-year
update and Technical Line, IPO financial statement accounting and disclosure considerations,
on EY AccountingLink at http://www.ey.com/US/Accountinglink.
Notes
1
In order for a registration to be deemed effective, the financial statements included must
be kept up to date depending on the company’s filing status. The symbols in the calendar
indicate what financial statements must be included in a calendar year-end company’s
registration statement at different points of the year. The dates include the permitted
extension to the next business day where they would otherwise fall on a weekend or holiday.
(Securities Act Rule 417)
2
A “Delinquent Filer” is a registrant that has not filed all required reports.
A “Loss Corporation” does not expect to report positive income after taxes but before
extraordinary items and the cumulative effect of a change in accounting principle for the
most recently ended fiscal year and did not do so for at least one of the two prior fiscal years.
3
Assumes that the filer is not a Loss Corporation or Delinquent Filer.
“Large Accelerated Filer” – an issuer (a) with an aggregate worldwide market value of voting
and non-voting equity held by non-affiliates of $700 million or more (as of the last business
day of the issuer’s most recently completed second fiscal quarter); (b) has been subject to the
requirements of Section 13(a) or 15(d) for at least 12 calendar months; and (c) has filed at
least one annual report pursuant to Section 13(a) or 15(d).
“Accelerated Filer” – an issuer with a market value greater than $75 million, but less than
$700 million that meet the (b) and (c) criteria outlined in “Large Accelerated Filers” above.
An issuer will maintain its filing status until the end of the fiscal year in which it meets the
criterion for exiting its applicable status (less than $500 million and more than $50 million for
Large Accelerated Filers and less than $50 million for Accelerated Filers, calculated as of the
last business day of the issuer’s most recently completed second fiscal quarter). (Exchange
Act Rule 12b-2)
4
“Smaller Reporting Company (SRC)” – an issuer with public float (or anticipated public float
based on anticipated IPO shares and price) of less than $75 million, or, if no public float,
annual revenues of less than $50 million during the most recently completed fiscal year.
(Exchange Act Rule 12b-2)
Staleness dates do not always align with periodic reporting deadlines. The SEC staff typically
allows for the filing or effectiveness of a registration statement during these gap periods
for timely filers (i.e., those that have filed all necessary Exchange Act reports for the past
12 months). This effectively makes the staleness date the same as the periodic reporting
deadline. For example, the 2017 third quarter 10-Q is due 9 November for Large Accelerated
Filers, and the SEC staff might allow a registration statement to go effective on 7 or 8
November prior to the 10-Q filing provided the issuer has been a timely filer. Conversely, in
some cases, the due date for the interim report on Form 10-Q will fall before the staleness
date, in which case the interim financial statements will be required in the registration
statement of a reporting company if they have been filed. For example, the staleness date
would otherwise be 16 May or 16 August for a non-accelerated filer, but Form 10-Q is due 15
May or 14 August.
