Test-the-waters communications and confidential submission process in connection with an exchange offer or merger.

General financial disclosure requirements for EGCs in registration statements and periodic reports.

Determination of EGC status.

EGCs may use confidential test-the-waters communications in connection with an exchange offer or merger. The EGC must also make the filings required under Rules 13e-4(c), 14a-12(b) and 14d-2(b) of the Exchange Act for pre-commencement tender offer communications and proxy soliciting materials in connection with business combination transactions (Question 42, September 28 FAQs).

EGCs can use the confidential submission process in Section 6(e) of the Securities Act to submit draft registration statements for an exchange offer or merger that is its IPO of common equity securities (Question 43, September 28 FAQs).

If an EGC uses the confidential submission process and does not commence its exchange offer before the effectiveness of the registration statement, it must publicly file the registration statement via EDGAR (including the initial confidential submission and all amendments) at least 21 days before the earlier of the road show or the anticipated date of effectiveness of the registration statement. This applies to all exchange offers that do not use early commencement, including those that do not qualify for early commencement under Rule 13e-4(e)(2) and Rule 14d-4(b) of the Exchange Act(Question 44, September 28 FAQs).

If an EGC uses the confidential submission process and commences its exchange offer before the effectiveness of the registration statement or if the early commencement exchange offers is subject only to Regulation 14E, it must publicly file the registration statement (including the initial confidential submission and all amendments) at least 21 days before the earlier of the road show or the anticipated date of effectiveness of the registration statement, but in any event no later than the date of commencement of the exchange offer (Question 44, September 28 FAQs).

An EGC using the confidential submission process must also file:

In a merger where the target company is subject to Regulation 14A or 14C and the registration statement of the EGC acquiror includes a prospectus that also serves as the target company's proxy, the acquiror must publicly file the registration statements at least 21 days before the earlier of the road show or the anticipated date of effectiveness of the registration statement. The acquiror must also make the required filings under Rule 425 of the Securities Act and Rule 14a-12(b) of the Exchange Act (Question 44, September 28 FAQs).

If an EGC is not a shell company and presented only two years of financial statements in its registration statement, the SEC will not object if, in its registration statement for the exchange offer or merger, the EGC presents only two years of financial statements for the target company (Question 45, September 28 FAQs).

If an EGC is not a shell company and presented only two years of financial statements in its registration statement for its IPO of common equity securities and has not yet filed three years of financial statements in a Form 10-K, the SEC will not object if the EGC presents only two years of financial statements for the acquired business in the Form 8-K (Question 46, September 28 FAQs).

Unless an EGC is a smaller reporting company, an EGC must present three years of financial statements in its registration statement on Form 10 or Form 20-F. Section 7(a)(2)(A) of the Securities Act, which permits two years of financial statements, applies only to the registration statement for the IPO of common equity securities (Question 48, September 28 FAQs).

If an issuer loses its EGC status, it is not required to present in subsequently filed registration statements and periodic reports, selected financial data or a ratio of earnings to fixed charges for periods prior to the earliest audited period presented in its initial Securities Act or Exchange Act registration statement (Question 50, September 28 FAQs).

The SEC staff addresses how to evaluate whether an EGC undertaking a forward acquisition or a reverse merger will trigger on a post-transaction basis any of the disqualifications from EGC status set out in Sections 2(a)(19)(A)-(D) of the Securities Act (Question 47, September 28 FAQs).

An EGC may not rely on Section 7(a)(2)(A) of the Securities Act to provide only two years of audited financial statements in the registration statement for an offering of debt securities that is the company's IPO. Section 7(a)(2)(A) of the Securities Act is limited to the registration statement for the IPO of common equity securities. However, if the EGC conducts a registered offering of debt securities after its IPO of common equity securities, the SEC will not object if the EGC does not present audited financial statements for any period prior to the earliest audited period presented in connection with its IPO of common equity securities (Question 49, September 28 FAQs).

The revenue test should be applied to the most recently completed fiscal year for purposes of determining whether the issuer qualifies as an EGC, regardless of whether financial statements for the period are presented in the registration statement (Question 51, September 28 FAQs).

The analysis to determine whether an issuer is an EGC focuses on whether the issuer, and not its parent, meets the requirements of an EGC. Based on the particular facts and circumstances, the EGC status of an issuer may be questioned if it appears that the issuer or its parent is engaging in a transaction for the purpose of converting a non-EGC into an EGC or for the purpose of obtaining the benefits of EGC status indirectly when it is not entitled to do so directly (Question 53, September 28 FAQs).

If an issuer otherwise qualifies as an EGC but for the fact that its IPO of common equity securities occurred on or before December 8, 2011 and that issuer was once an Exchange Act reporting company but is not currently required to file Exchange Act reports, the SEC will not object if the issuer takes advantage of all of the benefits of EGC status for its next registered offering and thereafter, until it triggers one of the disqualification provisions in Sections 2(a)(19)(A)-(D) of the Securities Act. This position is not available to an issuer that has had the registration of a class of its securities revoked under Section 12(j) of the Exchange Act (Question 54, September 28 FAQs).

The EGC status of an issuer may be questioned if it appears that the issuer ceased to be a reporting company for the purpose of conducting a registered offering as an EGC. Issuers with questions relating to taking advantage of the benefits of EGC status after ceasing to be an Exchange Act reporting company should contact the Division's Office of the Chief Counsel (Question 53, September 28 FAQs).