November 2017 Initial Public Offerings An Issuer’s Guide (US Edition) Contents INTRODUCTION 1 What Are the Potential Benefits of Conducting an IPO? 1 What Are the Potential Costs and Other Potential Downsides of Conducting an IPO? 1 Is Your Company Ready for an IPO? 2 GETTING READY 3 Are Changes Needed in the Company’s Capital Structure or Relationships with Its Key Stockholders or Other Related Parties? 3 What Is the Right Corporate Governance Structure for the Company Post-IPO? 5 Are the Company’s Existing Financial Statements Suitable? 6 Are the Company’s Pre-IPO Equity Awards Problematic? 6 How Should Investor Relations Be Handled? 7 Which Securities Exchange to List On? 8 OFFER STRUCTURE 9 Offer Size 9 Primary vs. Secondary Shares 9 Allocation—Institutional vs. Retail 9 KEY DOCUMENTS 11 Registration Statement 11 Form 8-A – Exchange Act Registration Statement 19 Underwriting Agreement 20 Lock-Up Agreements 21 Legal Opinions and Negative Assurance Letters 22 Comfort Letters 22 Engagement Letter with the Underwriters 23 KEY PARTIES 24 Issuer 24 Selling Stockholders 24 Management of the Issuer 24 Auditors 24 Underwriters 24 Legal Advisers 25 Other Parties 25 i Initial Public Offerings THE IPO PROCESS 26 Organizational or “Kick-Off” Meeting 26 The Due Diligence Review 26 Drafting Responsibility and Drafting Sessions 27 Filing with the SEC, FINRA, a Securities Exchange and the State Securities Commissions 27 SEC Review 29 Book-Building and Roadshow 30 Price Determination 30 Allocation and Settlement or Closing 31 Publicity Considerations 31 LIABILITY 34 Section 11 of the Securities Act 34 Section 12(a)(2) of the Securities Act 34 Section 10(b) of the Exchange Act 34 ONGOING OBLIGATIONS AS A PUBLIC COMPANY 36 SEC Reporting 36 Section 16 38 Beneficial Ownership Reporting 39 Corporate Governance 41 Other Considerations 41 APPENDICES 43 APPENDIX 1 44 NYSE and NASDAQ Non-quantitative Listing Requirements 44 APPENDIX 2 53 NYSE And NASDAQ Quantitative Listing Standards 53 APPENDIX 3 60 EGC and Smaller Reporting Company Disclosure Accomodations 60 APPENDIX 4 63 Indicative IPO Timetables 63 mayer brown ii If you have any questions regarding initial public offerings, please contact any of our US Capital Markets partners listed below or your regular contact at Mayer Brown. DAVID S. BAKST WILLIAM T. HELLER IV +1 212 506 2551 +1 713 238 2684 [email protected] [email protected] MICHAEL L. HERMSEN JOHN P. BERKERY +1 312 701 7960 +1 212 506 2552 [email protected] [email protected] EDWARD S. BEST PHILIP J. NIEHOFF +1 312 701 7100 +1 312 701 7843 [email protected] [email protected] JENNIFER J. CARLSON LAURA L. RICHMAN +1 650 331 2065 +1 312 701 7304 [email protected] [email protected] DAVID A. SCHUETTE JEFFREY M. DOBBS +1 312 701 7363 +1 713 238 2697 [email protected] [email protected] ROBERT F. GRAY, JR. +1 713 238 2600 [email protected] The authors gratefully acknowledge the assistance of Catherine Henderson in the preparation of this guide. iii Initial Public Offerings Introduction For most companies and their owners, an initial public • The need to facilitate the transition from an “owner- offering (IPO) is a “once-in-in-a-lifetime” event that repre- managed” company to a more widely-held company sents the culmination of many years of hard work and with a professional (non-owner) management team, personal investment. The IPO provides stockholders and frequently in connection with succession planning in management of the company with a significant sense of family-owned or otherwise closely-held companies. accomplishment and represents one of the most important • The desire to provide value to stockholders through a milestones in the corporate evolution of a company. spin-off or carve-out of a particular division or line of An IPO, however, frequently also brings with it a sense of business. upheaval as significant changes are often required to be made • The desire to enhance the profile and standing of the to the way a company operates and conducts itself – mem- company with customers, suppliers, lenders and other bership in the new “public” world brings with it legal and investors, and as an attractive employer. compliance obligations and challenges. Being a public company can have significant benefits, This guide provides an overview of some of the key issues with including: which we believe all directors, members of senior manage- • Access to a much broader investor base, consisting of ment, general counsels and other key decision makers both institutional and retail investors. involved with a potential US domestic IPO candidate should be familiar and focuses on the public offering process in the • Access to the public capital markets as an additional United States and listing on the New York Stock Exchange source of capital, through both subsequent equity (NYSE) or the Nasdaq Stock Market (Nasdaq) and life as a offerings and potential debt offerings, possibly on more public company. However, it is not intended as a comprehen- favorable terms than those available in the private equity, sive treatment of the subject matters covered by this guide or debt or loan markets. of all matters relevant to an IPO. This guide is also not • Increased liquidity for existing stockholders, including intended as a substitute for legal advice, and we encourage employees of the company who may have acquired shares our readers to reach out to the authors of this guide or any of as part of their compensation arrangements. the other key members of our US Capital Markets Practice • The ability to use the listed shares of the company as all or before taking any action. part of the consideration for an acquisition. European issuers should consult our guide Initial Public • An enhanced ability to attract and retain key talent for Offerings—an Issuer’s Guide (European Edition) and Asian the company through equity incentive arrangements issuers should consult our guide Initial Public Offerings—an for executives and other employees, including restricted Issuer’s Guide (Asia Edition) for additional information that shares, stock options or similar arrangements. foreign private issuers organized under the laws of those • A generally enhanced company profile and increased jurisdictions should consider when contemplating an initial confidence in the company by investors, creditors, cus- public offering in the United States. tomers, suppliers and other stakeholders in the company, deriving from public company status and the resulting What Are the Potential Benefits of Conducting enhanced transparency and disclosure. an IPO? What Are the Potential Costs and Other There are a number of different reasons why a company may Potential Downsides of Conducting an IPO? consider an IPO, including: While being a public company can offer many advantages, the • The need to raise additional capital to fund growth, either owners of a private company should not make the decision to organically or through acquisitions. conduct an IPO lightly and will need to carefully consider the • The need to provide existing stockholders with a “liquid- various costs and other potential downsides that can come ity event” and an option to “exit” all or part of their with being a public company, including: investment. mayer brown 1 • The costs resulting from an IPO: conducting the IPO itself The company’s “equity story” needs to be considered— as well as the ongoing costs of being a public company. investors must be provided with facts, figures and details as These include costs of maintaining a public company to why they should consider purchasing shares in the board and management team, costs of ongoing reporting company. The financial advisers, together with the company obligations, listing fees, costs of the company’s auditors, and its owners, will need to develop the equity story by costs of legal advisers and other general compliance focusing on the position of the company as a growth or costs. income play, its position within its market and sector and its • The loss of control by the existing owners: accom- strengths, strategy, track record and business plan, together modating the potentially divergent interests of other with macro data. All of this must be clearly and convincingly stockholders, adhering to a new set of rules and regula- outlined in a management presentation or other document at tions, meeting requirements for increased transparency, the outset of the process for the benefit of the financial and including disclosure of beneficial ownership of stock- legal advisers involved in the proposed IPO. Management will holders, management compensation and related party need to ensure that any key assumptions and projections are transactions, and the potential for a hostile takeover of supported with independent information (to the extent the company. possible) in order to allow the company’s underwriters and other financial advisers to assess the feasibility of an IPO. • Exposure to potential liability under the US securities laws in connection with the IPO and ongoing SEC reporting requirements. • Exposure to potential scrutiny and activism by public stockholders and other interested parties. Is Your Company Ready for an IPO? Once the owners of a private company have determined that the benefits of “going public” outweigh the downsides, the company and its stockholders, together with their respective financial, accounting and legal advisers, need to consider whether the company is ready for an IPO or whether the company would benefit from remaining a private company for the time being. The ideal IPO candidate tends to exhibit some or all of the following characteristics: • A clearly defined strategy. • A track record of sound financial performance and a solid balance sheet. • Market leading positions, favorable industry trends and growth prospects. • A large potential customer base and products or services that are attractive and accepted by the market.