SAMPLE TIME AND RESPONSIBILITY SCHEDULE FOR AN INITIAL PUBLIC OFFERING OF COMMON STOCK

Transcription

1 SAMPLE TIME AND RESPONSIBILITY SCHEDULE FOR AN INITIAL PUBLIC OFFERING OF MMON STOCK John K. Hoyns May 1, 2001

2 Sample Timetable and Responsibility Schedule for an Initial Public Offering of Common Stock 1 Participants Company Company Counsel Managing Underwriter(s) Underwriters Counsel Auditors Transfer Agent and Registrar Abbreviation UW TA 1. This timetable assumes a firm commitment underwriting for a U.S. issuer that does not involve a secondary offering by selling stockholders. Additional features may be involved in an offering that includes selling stockholders. For example, the managing underwriter(s) may require each selling stockholder to execute a power of attorney naming one selling stockholder as the representative of all selling stockholders with exclusive authority to enter into agreements on their behalf with the underwriters. Selling stockholders may also be required to place their stock in escrow pursuant to a Custody Agreement during the period between the signing of the Underwriting Agreement and the Closing.

3 2 SUMMARY TIME SCHEDULE Week 1 Organizational meeting Weeks 1-2 Commence preparation of Registration Statement and Underwriting Agreement Week 3 Circulate drafts of Registration Statement and Underwriting Agreement Meetings to discuss drafts of Registration Statement and Underwriting Agreement Week 4 Draft of Registration Statement to printer Circulate proofs of Registration Statement and Underwriting Agreement Meeting to discuss Registration Statement Weeks 5-6 Meetings to discuss revised proofs of Registration Statement Week 6 Meeting of Board of Directors to approve filing of Registration Statement and other matters in connection with offering Week 7 Meeting to finalize Registration Statement Registration Statement filed with SEC Week 11 Receive comments from SEC Meeting of all parties to discuss SEC comments (if necessary) File amendment to Registration Statement with SEC Week 12 Commence Road Show marketing efforts Weeks Receive additional comments from the SEC and finalize Registration Statement Week 14 Registration Statement becomes effective; determine offering price of stock and underwriting discounts; sign Underwriting Agreement; commence sale of stock Pricing + 3 business days Closing

4 3 DETAILED TIME SCHEDULE AND ASSIGNMENT OF TASKS Date Activity Participants Several months before formal commencement of preparation of the Registration Statement During the month before formal commencement of preparation of the Registration Statement Explore alternative means of financing Prepare business plan and information memorandum describing company for presentation to prospective managing underwriter(s) 2 Select managing underwriter(s) Select counsel Meetings between Company and Company Counsel concerning corporate cleanup. The following matters should be discussed: (a) (b) (c) (d) Amendments to Certificate of Incorporation Amendments to By-Laws Reincorporation in a different state (e.g., Delaware) and restructuring of Company into a single corporation or a parent corporation with subsidiaries, as appropriate Composition of Board of Directors; creation of audit committee and other committees 2. The terms sale, sell, offer to sell, offer for sale and offer, and the term offer to buy as used in Section 5(c) of the Securities Act of 1933, as amended (the Securities Act ), are defined in the Securities Act to exclude preliminary negotiations or agreements between an issuer and any underwriter or among underwriters who are or are to be in privity of contract with an issuer.

5 4 (e) (f) (g) (h) (i) (j) (k) (l) Revise provisions of agreements that terminate when the company becomes public, e.g., restrictions on transfer, rights to board representation Readjustment of individual stockholders holdings in the Company, if desired Employment agreements Creation of stock option, stock purchase and other desired employee benefit plans Verification that all existing employee benefit plans comply with requirements of ERISA and other applicable laws Review whether there are any Regulation G margin issues under any plans or options Review ability of insiders to resell shares after becoming public. Consider availability of Rule 701 and Rule 144 Status after offering of stockholders agreements, voting trust agreements and other restrictions on voting and transfer of stock (m) Need to renegotiate covenants in loan agreements that restrict, or limit use of proceeds of, a public offering (n) (o) Consider adding antitakeover devices The need for experts other than accountants, such as petroleum engineers Review company website, if any, for accuracy of information Preliminary negotiation of terms of offering, UW

6 5 Week 1 Meeting between Company and Auditors concerning need for change in accounting procedures (e.g., instituting necessary procedures and controls to comply with requirements of Foreign Corrupt Practices Act and to produce reports required under the Securities Exchange Act of 1934, as amended (the Exchange Act )) when Company is a public company Negotiate letter of intent or term sheet Organizational meeting, at which the following matters should be discussed:,,,, (a) (b) (c) (d) (e) (f) (g) (h) Timetable Size of offering Inclusion of selling shareholders Timing and plans for marketing meetings (the Road Show ) Assignment of responsibilities for tasks Selection of financial printer and banknote company Selection of Transfer Agent and Registrar Appropriateness of certain corporate clean-up matters (e.g., employment agreements, antitakeover devices) (i) Listing on a national securities exchange 3 or quotation on Nasdaq; if stock is to be quoted on Nasdaq, whether stock will be quoted on the Nasdaq National Market 4 3. A company making an initial public offering may not meet the criteria for listing on the major national securities exchanges. The New York Stock Exchange generally requires, in the case of a U.S. company, net pre-tax income of between $2,000,000 and $4,500,000 in each of the three fiscal years preceding the offering and aggregate market value of publicly-held shares of not less than $40,000,000 (subject to adjustment), provided that an alternative standard may be applied to companies with a market capitalization of at least $500 million and revenues of at least $200 million in their most recent fiscal year. The American Stock Exchange generally requires, in the case of a U.S. company, net pre-tax income in the fiscal year (Footnote continued on next page)

7 6 Listing on the New York Stock Exchange, the Nasdaq National Market or certain other exchanges will avoid substantive regulation under state securities and Blue Sky laws 5 (j) (k) (l) Discussion of financial statements required and of any special accounting problems Discussion of any anticipated disclosure problems Discussion of anticipated NASD or Blue Sky problems (m) Arrangements with other stockholders who have registration rights (Footnote continued from previous page) preceding the offering (or in two of the three fiscal years preceding the offering) of not less than $750,000, stockholders equity of $4,000,000 or more and aggregate market value of publicly-held shares of not less than $3,000,000. Certain additional listing requirements are also applicable. 4. In order to be eligible for the Nasdaq National Market, a company making an initial public offering must meet one of the following entry standards: (a) pre-tax income of at least $1 million in the most recently completed fiscal year or in two of the last three most recently completed fiscal years, market value of publicly-held shares of at least $8 million and net tangible assets of at least $6 million, (b) net tangible assets of at least $18 million and market value of publicly-held shares of at least $18 million or (c) market value of publicly-held shares of at least $20 million and market capitalization of $75 million or total assets and revenue of $75 million. In each case, there must be a minimum of 1.1 million publicly-held shares and a minimum bid price of $5 per share. In addition to meeting the financial criteria for inclusion, the company must register the common stock under the Exchange Act. Registration under the Exchange Act is ultimately required for continued quotation of a security on any Nasdaq system, but new issuers can have their securities temporarily authorized for inclusion on Nasdaq (other than the National Market) without having effected such registration. Although any company that has had a registration statement under the Securities Act become effective is immediately subject to certain reporting and other requirements of the Exchange Act regardless of whether registration of the applicable class of securities has been effected under the Exchange Act, registration under the Exchange Act results in the application of another series of Exchange Act requirements to the company. These requirements include the rules and regulations concerning proxy solicitations and (if equity securities have been registered), reports of beneficial ownership and short-swing profit recapture. 5. Pursuant to the National Securities Markets Improvement Act of 1996, covered securities were exempted from registration and qualification requirements of state securities or Blue Sky laws. The term covered securities is defined to include a security listed, or authorized for listing, on the New York Stock Exchange or the American Stock Exchange, listed on the Nasdaq National Market or listed or authorized for listing on a national securities exchange that the SEC determines has listing standards substantially similar to the foregoing or of the same issuer that is equal or senior to a listed security.

8 7 (n) (o) (p) (q) Desirability of pre-filing conferences with the SEC, Blue Sky authorities (if applicable) or the NASD Recapitalization of the Company (e.g., stock split or reverse stock split) that will be required prior to offering Discussion of any desired stockholder concessions, such as lock-up agreements or (if applicable) Blue Sky escrow agreements Discussion of need to request confidential treatment of any exhibits Commence preparation of Registration Statement Review intended use of proceeds. Consider whether there are any issues under the Investment Company Act of 1940 Continue business due diligence and commence legal due diligence review of material contracts, litigation, claims and contingent liabilities, past corporate action (minute books, stock records, charter, by-laws, etc.), financial statements, documentation with regard to outstanding securities, etc. Draft Officers and Directors Questionnaires Commence preparation of Underwriting Agreement, Agreement Among Underwriters, Underwriters Questionnaire, Underwriters Power of Attorney 6 and Preliminary Blue Sky Memorandum Commence preparation of necessary financial statements Draft powers of attorney for Registration Statement and amendments thereto, if needed,,,, UW, 6. A separate Agreement Among Underwriters, Underwriters Questionnaire and Underwriters Power of Attorney will not be required if a Master Agreement Among Underwriters is applicable to the offering.

9 8 Week 2 Week 3 Select banknote company to print stock certificates Select financial printer File Form ID with the SEC to obtain EDGAR access codes for the Company Advise banknote company of schedule and arrange for printing of stock certificates 7 Select Transfer Agent and Registrar Send Officers and Directors Questionnaires and powers of attorney, if any, to officers, directors and (as to questionnaires) 10% stockholders of Company Reserve stock exchange trading symbol (if stock is to be listed on a national securities exchange); determine availability of Nasdaq trading symbols (if stock is to be quoted on Nasdaq) Continue preparation of Registration Statement and underwriting documents Commence preparation of request for confidential treatment, if necessary Commence negotiations with lenders concerning necessary consents and revisions of covenants that would restrict offering or use of proceeds thereof Circulate drafts of Registration Statement and Underwriting Agreement Meetings to discuss Registration Statement and Underwriting Agreement Revise Registration Statement and Underwriting Agreement,,,,, 7. Up to six to eight weeks may be required to print engraved certificates for stock that will be listed on the New York Stock Exchange; temporary certificates may be used if necessary.

10 9 Discuss comfort letter content and procedures Discuss graphics and photos for Prospectus, if required Commence drafting necessary corporate cleanup documents (e.g., charter and by-law amendments, employment agreements, stock option plans), documents necessary to effect recapitalization and Board resolutions necessary to authorize the public offering Commence preparation of stock exchange listing application, if applicable Review and approve proofs of stock certificates Circulate drafts of financial statements 8 Obtain completed questionnaires and powers of attorney, if any, from officers and directors and 10% shareholders of Company, UW,, Week 4 Draft of Registration Statement to printer Weeks 5-6 Meeting to discuss initial printed proof of Registration Statement (including draft financial statements) and Underwriting Agreement Commence compilation and preparation of exhibits to Registration Statement (including obtaining electronic copies of all exhibits for purposes of EDGAR filing with the SEC) Circulate revised proofs of Registration Statement and Underwriting Agreement Meetings to discuss revised proofs of Registration Statement,,,,, 8. The precise timing of release of the financial statements will vary, depending on the proximity of the commencement of preparation of the Registration Statement to the end of the fiscal quarter for which financial statements are to be included in the Registration Statement.

11 10 Week 6 Finalize corporate cleanup and recapitalization documents Finalize financial statements Finalize Underwriting Agreement Send drafts of Registration Statement to stock exchange on which the Company wishes to list stock for confidential review of eligibility (required by the New York Stock Exchange if listing intention language is to be included in the preliminary prospectus) Meeting of Board of Directors of Company to approve financing program and corporate cleanup matters, including adoption of resolutions relating to:,, (a) (b) (c) (d) (e) (f) (g) Authorization of issue, sale and delivery of stock Approving form of Underwriting Agreement and authorizing execution and delivery thereof If necessary, appointing a special committee of the Board of Directors to establish the price of stock to the Underwriters and the initial public offering price Approving Registration Statement and Prospectus and authorizing execution and filing of Registration Statement and all amendments thereto Authorizing listing of stock on Nasdaq or a stock exchange Authorizing Blue Sky filings, if applicable Appointing Transfer Agent and Registrar

12 11 (h) (i) (j) (k) Approving all necessary corporate cleanup matters Calling a meeting of stockholders, if desired Approving reincorporation and/or recapitalization Approving form of stock certificates Meeting (or written consent in lieu of meeting) of shareholders of the Company, at which resolutions are adopted approving reincorporation and/or recapitalization and all corporate cleanup matters that require shareholder approval File documents necessary to effectuate reincorporation and/or recapitalization Circulate draft of comfort letter Prepare Form 8-A for Exchange Act registration, if applicable 9 Week 7 Meeting to finalize Registration Statement,, Complete compilation and preparation of exhibits to Registration Statement Prepare transmittal letter to SEC Prepare application for Nasdaq or stock exchange listing Prepare transmittal letter to NASD 9. Although by its terms Form 8-A (as opposed to the long-form Form 10) may only be used by issuers required to file reports pursuant to Section 13 or 15(d) of the Exchange Act (which for almost all companies making an initial public offering will only be the case after the effective date of the initial registration statement under the Securities Act), in practice the SEC staff has indicated that it prefers issuers who have filed an initial registration statement under the Securities Act to use Form 8-A rather than Form 10 to register their securities under the Exchange Act.

13 12 Week 8 Obtain check for NASD filing fee and arrange for wire transfer payment of SEC registration fee Send final changes in Registration Statement to printer; prepare filings for SEC, NASD Complete Preliminary Blue Sky Survey, if applicable Execute Registration Statement, Auditor s Report and Auditor s Consent File Registration Statement with SEC electronically via EDGAR 10 File Form 8-A with SEC electronically via EDGAR and with stock exchange on which listing is sought, if applicable File Registration Statement and related materials with NASD File request for confidential treatment with the SEC, if applicable Issue brief press release re filing of Registration Statement Proceed with Blue Sky qualifications, if applicable, as designated by Managing Underwriter Apply for CUSIP number for stock; send copy of Registration Statement to CUSIP Service Bureau Apply for listing on Nasdaq or stock exchange; send copies of Registration Statement to Nasdaq or exchange Request estimated date on which SEC comments will be furnished,,,, UW, 10. Although it is permissible at this point to print and distribute the preliminary prospectus included in the Registration Statement, typically this marketing effort does not begin until after SEC comments are received and a revised Registration Statement is filed.

14 13 Weeks Begin preparation of Road Show materials File documents (e.g., opinion of Company Counsel) and otherwise finalize arrangements with Transfer Agent and Registrar necessary for its initial appointment Obtain CUSIP number for stock Approve final proof of stock certificates Resolve outstanding issues with NASD and, if applicable, Blue Sky administrators Resolve issues with Nasdaq or stock exchange on which stock will be listed Meeting (or consent in lieu of meeting) of stockholders of the Company, reelecting directors, if desired, followed by meeting of Board of Directors of Company, reelecting officers 11 Receive stock exchange or Nasdaq approval for listing or quotation of stock UW, Week 11 Receive comments from SEC 12 Review SEC comments and prepare amendment to Registration Statement in response thereto,, 11. The Company should consider holding its annual meeting of stockholders prior to the effective date of the Registration Statement under the Securities Act, especially if Exchange Act registration is to be concurrently effected in connection with the listing of the Company s common stock on a national securities exchange or its inclusion in the Nasdaq National Market. After the registration of the common stock under the Exchange Act, the proxy solicitation rules under the Exchange Act will become applicable to solicitation of proxies in respect of stockholders meetings. 12. Estimated time frame for receipt of SEC comments. To the extent that the SEC s comments are received significantly before or after the assumed date, the subsequent dates would be adjusted accordingly. If response to the SEC comments results in significant changes to the Registration Statement and a preliminary prospectus was previously distributed, a new preliminary prospectus may have to be circulated before the Registration Statement can become effective.

15 14 File amendment to the Registration Statement with the SEC in Washington electronically via EDGAR File amendment to the Registration Statement with the NASD File amendment to the Registration Statement with Nasdaq or stock exchange, as applicable Print and distribute preliminary prospectus, Week 12 Commence Road Show marketing efforts, UW Weeks Receive additional comments from the SEC and file amendments to the Registration Statement, as necessary until the staff of the SEC has no further comments 13 Obtain NASD clearance of underwriting arrangements Prepare requests for acceleration of effective date of Registration Statement Arrange for certification to the SEC by the exchange on which stock will be listed as to acceleration of effectiveness of Form 8-A Notify Nasdaq of expected effective date of Registration Statement no less than 72 hours prior to anticipated effectiveness Finalize comfort letter,, UW,, 13. It is assumed that Rule 430A will be employed in connection with the effectiveness and pricing of the offering. Rule 430A allows a registration statement to be declared effective without information with respect to the public offering price, underwriting syndicate, underwriting discounts or commissions and other related matters. A form of prospectus containing such information must be filed with the SEC (pursuant to Rule 424(b)) within fifteen business days after the effective date of the registration statement (or fifteen business days after the effectiveness of a post-effective amendment thereto that contains a form of prospectus) and within two business days after the earlier of determination of the offering price and the date such form of prospectus is first used after effectiveness in connection with a public offering or sales; if such a prospectus is not filed within such fifteen-business day period, the omitted information must be contained in an effective post-effective amendment to the registration statement.

16 15 Week 14 Distribute initial draft of closing memorandum Commence preparation of legal opinions, certificates and other closing documents and order good standing certificates Send acceleration request of the Company to SEC together with letter of Managing Underwriter(s) joining in such request and providing information concerning distribution of preliminary prospectuses 14 Directors and officers of the Company file Forms 3 with the SEC, if Form 8-A will be declared effective Deadline for receiving completed Underwriters Questionnaire and Underwriters Powers of Attorney from syndicate members 15 Registration Statement declared effective by SEC Form 8-A declared effective by SEC, if applicable Managing Underwriter notified of effectiveness of Registration Statement and Form 8-A, if applicable Nasdaq or stock exchange notified of effectiveness of Registration Statement and Form 8-A, if applicable Finalize Final Blue Sky Survey, if applicable Complete Blue Sky registrations, if applicable,, TA UW 14. This request may be made orally, so long as a letter indicating that fact and stating that the Company and the managing or principal underwriters are aware of their obligations under the Securities Act accompanied the Registration Statement (or a preeffective amendment thereto) at the time of filing with the SEC. 15. If a Master Agreement Among Underwriters is applicable to the offering, telexes will be received from parties to the Master Agreement (and other parties who are invited to participate in the offering) who wish to participate in the offering.

17 16 Informal agreement reached between Company and Managing Underwriter(s) as to final terms of the offering (the price to the Underwriters of the stock and the initial public offering price thereof, etc.) Meeting of Company s Board of Directors (or special committee of the Board of Directors) to establish the price of stock to Underwriters and the initial public offering price thereof and to approve final form of Underwriting Agreement Sign Agreement Among Underwriters Sign Underwriting Agreement Deliver comfort letter Prepare tombstone Give printer labels and mailing instructions for final Prospectus Finalize and print final Prospectus Commence public sales of stock and advise Company Issue press release announcing offering Begin market-making activities Distribute revised draft of closing memorandum Contact banknote company to arrange for printing in quantity of stock certificates, UW UW, UW UW,, UW, UW UW Week 14 - Pricing + 1 business day Tombstone appears UW Notify syndicate of closing date and give instructions re payment File final Prospectus with SEC electronically via EDGAR pursuant to Rule 424(b) under the Securities Act UW

18 17 Pricing + 2 business days Deliver copy of final Prospectus to NASD Deliver copy of final Prospectus to Nasdaq or stock exchange Furnish Company and Transfer Agent and Registrar with names and denominations in which stock certificates are to be registered Company Counsel opinion and instructions for certificates to Transfer Agent and Registrar Preliminary closing (2:00 p.m., New York time, on the business day preceding the closing) UW, Pricing + 3 business days Closing (10:00 a.m., New York time) 16,, TA Day after effective date of Registration Statement Within 45 days after the end of the first fiscal quarter ending after effective date of Registration Statement (unless such first fiscal quarter is the last fiscal quarter of the current fiscal year) Within 90 days after the end of the fiscal year ending after the effective date of the Registration Statement Earliest date (in normal case) on which to file Form S-8 to register stock issuable pursuant to employee benefit plans File report on Form 10-Q with SEC File report on Form 10-K,, 16. If the pricing occurs after 4:30 p.m. (New York time), the closing will normally be held Pricing + 4 business days. See Exchange Act Rule 15c6-1(c). In a best efforts underwriting, the closing would be delayed until the entire (or minimum) distribution provided for in the Underwriting Agreement is completed, assuming such distribution occurs within the time agreed on in the Underwriting Agreement (generally between 60 and 120 days from the effective date of the Registration Statement). The proceeds of the offering would probably be escrowed until the closing.

19 18 As soon as practicable after the end of 12 months beginning after the effective date of the Registration Statement 120 days from end of fiscal year in which Registration Statement becomes effective Effective date of common stock registration statement under Exchange Act Various dates subsequent to effective date of Registration Statement Make earnings statements meeting the requirements of Section 11(a) of the Securities Act available generally to stockholders 17 Last date on which to file registration statement with respect to common stock under the Exchange Act on Form 8-A, if stock not voluntarily registered previously under the Exchange Act Due date of initial reports of beneficial ownership of equity securities under Section 16(a) of the Exchange Act on Form 3 by officers, directors and 10% shareholders of the Company; proxy solicitation rules now applicable with respect to common stock of the Company Mailings to stockholders as represented in Prospectus Provide Underwriters with copies of filings as agreed upon in Underwriting Agreement, 17. Rule 158 under the Securities Act contains provisions whereby the earnings statement requirement can be met through reports filed with the SEC under the Exchange Act.

20 19 DOCUMENT PREPARATION RESPONSIBILITIES Document Responsibility for Initial Draft Registration Statement (1) Registration Statement Cover Page (2) Prospectus (a) Cover page(s), (b) Stabilization Language (c) Prospectus Summary (d) Risk Factors (e) The Company (f) Use of Proceeds (g) Dividends (h) Capitalization, (i) Dilution, (j) Selected Consolidated Financial Data, (k) Management s Discussion and Analysis of, Financial Condition and Results of Operations (l) Business of the Company (m) Management (n) Principal Stockholders (o) Description of Capital Stock (p) Shares Eligible for Future Sale (q) Underwriting (r) Legal Opinions, (s) Experts, (t) Additional Information (u) Financial Statements, (v) Part II, (3) Exhibits (including auditor s consents), Agreement Among Underwriters Underwriting Agreement Underwriters Questionnaire Blue Sky Memorandum, if applicable Underwriters Power of Attorney Selected Dealers Agreement (also known as Selling Agreement) Directors Power of Attorney Officers and Directors Questionnaire Comfort Letters Tombstone Advertisement Exchange or Nasdaq Listing Application Form 8-A Resolutions of Board of Directors or Special Committee of Board of

21 20 Directors Press Releases Transmittal Letters Opinion of Counsel for the Company Opinion of Counsel for the Underwriter,,,