Topic 10: Emerging Growth Companies
(Last updated: 6/30/2013)
Title I of the JOBS Act, which was effective as of April 5, 2012, created a new
category of issuers called “emerging growth companies, or EGCs” whose financial
reporting and disclosure requirements in certain areas differ from other categories
of issuers. The Fixing America’s Surface Transportation (FAST) Act, enacted on
December 4, 2015, amended certain of the requirements that apply to EGCs.
Until the Commission amends the form requirements, Regulation S-X, and
Regulation S-K to be consistent with the disclosure provisions for EGCs as set forth
in Title I of the JOBS Act (as amended by the FAST Act), an EGC may comply with the
disclosure provisions therein in its registration statements, periodic reports, and
proxy statements, even if doing so would be inconsistent with existing rules and
regulations. The disclosure provisions in Title I supersede, in relevant part,
existing rules and regulations. On January 13, 2016, the Commission adopted interim
final rules that revised Form S-1 and Form F-1 for certain provisions of the FAST
Act.
Refer to the Division of Corporation Finance’s FAST Act guidance at
http://www.sec.gov/divisions/corpfin/guidance/fast-act-interps.htm
and revised JOBS Act guidance at http://www.sec.gov/divisions/corpfin/guidance/cfjjobsactfaq-title-i-general.htm.
10100 Eligibility
10110 Eligibility as an EGC
10110.1 An issuer is an EGC if it meets all of the following criteria:
- It had total annual gross revenues of less than $1.235 billion during its most recently completed fiscal year. See Section 10110.2.
- It has either (1) not yet had or (2) had after December 8, 2011, its first sale of common equity securities pursuant to an effective registration statement under the Securities Act of 1933. See Section 10110.3.
- It has not met any of the disqualifying provisions. See Section 10110.4. (Lastupdated: 12/31/2022)
(Last updated: 12/31/2022)
10110.2
Revenue Test: The phrase “total annual gross revenues” means total
revenues as presented on the statement of comprehensive income under U.S.
GAAP (or IFRS as issued by the IASB, if used as the basis of reporting by a
foreign private issuer). The term “most recently completed fiscal year” is
the most recent annual period completed, regardless of whether the financial
statements for the period are presented in the registration statement.
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Foreign private issuersIf the financial statements of a foreign private issuer are presented in a currency other than U.S. dollars, total annual gross revenues should be calculated in U.S. dollars using the exchange rate as of the last day of the most recently completed fiscal year.
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Banks and similar financial institutionsA bank must include all gross revenues from traditional banking activities. Banking activity revenues may include interest on loans and investments, dividends on investments, fees from loan origination, fees from trust and investment services, commissions, brokerage fees, mortgage servicing revenues, and any other fees or income from banking or related services. (Last updated: 10/30/2020)
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PredecessorIf the financial statements for the most recently completed fiscal year are those of the predecessor of the issuer, the predecessor’s revenues should be used when determining if the issuer meets the definition of an EGC.
10110.3
First sale of common equity securities: This phrase is not limited to
a company’s initial primary offering of common equity securities for cash.
It could also include registered offerings of common equity pursuant to an
exchange offer, merger, employee benefit plan on a Form S-8, and selling
shareholder’s secondary offering on resale registration statements.
10110.4 Disqualifying Provisions
An issuer retains its status as an EGC until the earliest of:
- The last day of the fiscal year in which its total annual gross revenues are $1.235 billion or more. For example, a calendar year-end company whose total annual gross revenues exceed $1.235 billion on October 31, 2013 would cease to be an EGC on December 31, 2013. (Last updated: 12/31/2022)
- The last day of the fiscal year following the fifth anniversary of the date of the first sale of common equity securities of the issuer under an effective Securities Act registration statement as an EGC.
- This date is determined by looking to the fiscal year during which the fifth anniversary occurs. The last day of this fiscal year will be the first day that the issuer is a non-EGC, provided no other disqualifying provisions have been triggered at an earlier date.
- The date on which it has issued more than $1 billion in non-convertible debt in the previous three years.
- “Non-convertible debt” means any non-convertible security that constitutes indebtedness, whether issued in a registered offering or not. Bank debt generally does not constitute a debt security.
- For purposes of assessing the amount of non-convertible debt securities issued as of any date, an issuer should look at the immediately preceding rolling three-year period. An issuer does not look at non-convertible debt issued in relation to fiscal or calendar years.
- All non-convertible debt securities issued over the prior three-year period, whether outstanding or not, are required to be counted against the $1 billion debt limit. A company does not have to count debt securities issued in an A/B exchange offer. These debt securities are identical to (other than the fact that they are not restricted securities) and replace those issued in the non-public offering and the staff views the A/B exchange offer as, in effect, the completion of the capital-raising transaction.
- The date on which it becomes a large accelerated filer. Note: the determination of whether a company is a large accelerated filer is made on the last day of the company’s fiscal year. See Section 1340.2.
10110.5 Losing Eligibility Prior to Effectiveness — If a
company was an EGC at the time it submitted a draft registration statement
or publicly filed a registration statement, but ceases to qualify as an EGC
while undergoing the confidential review of its draft registration statement
or the review of its publicly filed registration statement — for example,
since the initial submission or filing date, a fiscal year has been
completed with revenues over $1.235 billion — the company will continue to
be treated as an EGC for the purposes of disclosure requirement
accommodations in its initial registration statement until the earlier of:
- The date on which the issuer consummates its initial public offering, or
- The end of the one-year period beginning on the date the company ceased to be an EGC. (Last updated 7/1/2019: 12/31/2022)
10110.6 Losing Eligibility Between Initial Filing Date and
Effectiveness — Securities Act Rule 401(a) provides that the “form
and content of a registration statement and prospectus shall conform to the
applicable rules and forms as in effect on the initial filing date of such
registration statement and prospectus.” Accordingly, the ability to use in a
registration statement the scaled disclosure provisions applicable to EGCs
depends on whether the company qualifies as an EGC at the initial public
filing date of the registration statement. If a company qualifies as an EGC
on the initial date that it publicly files a registration statement, the
scaled disclosure provisions related to EGCs would continue to apply through
effectiveness of the registration statement even if the issuer loses its EGC
status during the registration process.
10110.7 Losing Eligibility After First Sale — If an issuer loses its EGC status after it
has conducted its first sale of common equity securities pursuant to an effective
registration statement as an EGC, it cannot regain EGC status.
10110.8 Effect of Prior Exchange Act Reporting Obligation
that No Longer Exists — If an issuer would otherwise qualify as an
EGC but for the fact that its initial public offering of common equity
securities occurred on or before December 8, 2011, and such issuer was once
an Exchange Act reporting company but is not currently required to file
Exchange Act reports, then the staff would not object if such issuer takes
advantage of all of the benefits of EGC status for its next registered
offering and thereafter, until it triggers one of the disqualifying
provisions. This position is not available to an issuer that has had the
registration of a class of its securities revoked pursuant to Exchange Act
Section 12(j).
Based on the particular facts and circumstances, the staff may question EGC
status of an issuer 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.
10110.9 Effect of Predecessor Ineligibility on Successor
— If an issuer completes a transaction through which it becomes the
successor to its predecessor’s Exchange Act registration and reporting
obligations and the predecessor is not eligible to be an EGC because its
first sale of common equity securities occurred on or before December 8,
2011, then similarly the issuer (successor) is not eligible to be an
EGC.
10120 Other Eligibility Issues
10120.1 Transactions Related to a Subsidiary of the
Registrant — A parent may: (1) spin-off a wholly-owned subsidiary,
(2) register an offer and sale of the wholly owned subsidiary’s common stock
for an initial public offering, or (3) transfer a business into a
newly-formed subsidiary for purposes of an initial public offering of that
subsidiary’s common stock. In these circumstances, the analysis to determine
whether an issuer is an EGC focuses on whether the subsidiary, and not the
parent, meets the requirements of an EGC. See also Section 10120.3.
10120.2 Assessing Eligibility Subsequent to a Merger
Transaction — Eligibility as an EGC will vary subsequent to a merger
transaction.
Example:
Example 1: Company A acquires Company B for cash or stock, in a forward acquisition.
Company A is both the legal acquirer and the accounting acquirer.
Example 2: Company C undertakes a reverse merger with Company D, an operating
company. Company D is presented as the predecessor in the post-transaction
financial statements.
In each example, the companies’ fiscal year is the calendar year; the
transactions occur on September 30, 2012; and Section 10110.9 on succession does not
apply.
The evaluation of Company’s A’s and Company’s C’s eligibility as an EGC
post-transaction, should be considered as follows. See also Section 10120.3.
Examples/Tests
| Example 1: Forward Acquisition | Example 2: Reverse Merger |
---|---|---|
Annual revenues test | Look to Company A’s revenues, which
will include Company B’s revenues from
Oct. 1, 2012. | Look to Company D’s revenues, which
will include Company C’s revenues from
Oct. 1, 2012. |
Five-year
anniversary test | Look to Company A’s date of first sale. | Look to Company C’s date of first sale. |
Issued debt during previous three years test | Look to Company A’s debt issuances,
which will include Company B’s debt
issuances from Oct. 1, 2012. | Look to Company D’s debt issuances,
which will include Company C’s debt
issuances from Oct. 1, 2012. |
Large
accelerated filer
test | At Dec. 31, 2012, look to Company A’s market value at June 30, 2012. At Dec. 31, 2013, look to Company A’s
market value (which will include
Company B’s) at June 30, 2013. | At Dec. 31, 2012, look to Company C’s market value at June 30, 2012. At Dec. 31, 2013, look to Company C’s
market value (which will include
Company D’s) at June 30, 2013. |
NOTE:
The above table should be considered in conjunction with Section 10110.9. For example, assume a shell company files its initial public offering of common
equity securities on or before December 8, 2011 and
thus, is not an EGC. Two years later, it undertakes
a reverse merger with another company that qualifies
as an EGC. Post-transaction, notwithstanding the
above table, the registrant is not an EGC and may not take advantage of any scaled disclosure
provisions. |
10120.3 Disallowing Emerging Growth Company Status — Based on the particular
facts and circumstances, the staff may question EGC status of a company if it
appears the company 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.
10200 Scaled Disclosure Provisions
10210 General
10210.1 An EGC is not required to apply all scaled disclosures; it may choose to follow
some scaled disclosures, but not others. However there is one exception related
to accounting standards, which is discussed in Section 10230.1b.
10220 Financial Reporting Accommodations
10220.1 Number of Years of Registrant Financial Statements to be Presented
- Initial Public Offering of Common Equity SecuritiesAn EGC is not required to present more than two years of audited financial statements in a Securities Act registration statement for an initial public offering of its common equity securities.Foreign private issuers that file using IFRS as issued by the IASB may need a third balance sheet in certain circumstances. See Section 10320.
- Initial Public Offering of Debt SecuritiesAn EGC must present three years of audited financial statements in its initial public offering of debt securities, unless Section 10220.1c applies.
- Securities Act Registration Statements Filed Subsequent to the Initial Public Offering of Common Equity SecuritiesAn EGC is not required, in subsequent filings, to include audited financial statements for any periods prior to the earliest audited period presented in connection with its initial public offering of common equity securities.
- Exchange Act Registration StatementsEGC Exchange Act registration statements require the presentation of three years of financial statements unless the company qualifies as a smaller reporting company.
- Annual Report on Form 10-K or 20-FFor an EGC that is not a smaller reporting company, three years of audited financial statements are required to be included in its Form 10-K or Form 20-F.
- Omission of Financial Information for Historical PeriodsSee the Division of Corporation Finance’s C&DIs for Securities Act Forms, Question 101.04. Note that Question 101.05 addresses similar matters for non-EGC issuers. (Last updated 8/25/2017)
10220.2 Selected Financial Data
In the initial registration statement under the Securities Act or the Exchange
Act and in subsequent filings, an EGC is not required to present selected
financial data in accordance with Item 301 of Regulation S-K for any period
prior to the earliest audited period presented in that initial registration
statement.
A company that has lost EGC status does not need to present, in subsequently
filed registration statements and periodic reports, selected financial data
for periods prior to the earliest audited period presented in its initial
Securities Act or Exchange Act registration statement.
10220.3 [Reserved]
(Last updated: 10/30/2020)
10220.4 Management Discussion and Analysis
(Last updated: 3/17/2016)
An EGC may limit its MD&A discussion to cover the periods presented in the
financial statements included in its registration statements filed or
submitted for its initial public offering.
10220.5 Financial Statements of Entities Other Than the
Registrant and Pro Forma Financial Information
(Last updated: 11/9/2016)
- If the significance tests result in a requirement to present three years of financial statements for entities other than the registrant, such as acquired businesses under Rule 3-05, acquired real estate operations under Rule 3-14 or equity method investees under Rule 3-09, an operating company EGC may present two years of financial statements for these other entities in the registration statement for its initial public offering of common equity securities.
- If an operating company EGC voluntarily presents a third year of its financial statements in its initial public offering of common equity securities, it may limit the financial statements of these other entities to two years instead of three in that registration statement.
- See the Division of Corporation Finance’s C&DIs for the FAST Act, Question 2 for guidance regarding the omission of financial statements of other entities. (Last updated 8/25/2017)
- An EGC may be required to file a Form 8-K pursuant to Items 2.01 and 9.01 for the acquisition of a significant business. If the significance tests result in a requirement to present three years of financial statements, an operating company EGC may present two years of financial statements for the acquired business in its Form 8-K during the period subsequent to the EGC’s initial public offering of common equity securities, but prior to the earlier of the filing or the filing deadline of its first Form 10-K.For example, assume a non-SRC operating company that qualifies as an EGC presents two years of its financial statements in the registration statement for its initial public offering of common equity securities. Two years later, it acquires a company that also qualifies as a non-SRC EGC. Assume that post-transaction, based on the application of Section 10120.2, the post-merger company is an EGC. Post-transaction, the Form 8-K must present three years of the accounting acquirer’s financial statements, even though the post-merger company is an EGC. The reason is that the Form 8-K is not: (1) a registration statement for an initial public offering of common equity securities or (2) filed subsequent to the EGC’s registration statement for an initial public offering of common equity securities, but prior to the earlier of the filing or the filing deadline of its first Form 10-K. However, because the post-merger company is an EGC, it may take advantage of scaled disclosure provisions other than those related to the number of years to present in a filing.
10220.6 Financial Statements of a Target Company in Form
S-4
The staff will not object if an operating company EGC presents two years of the
target’s financial statements and interims in a Form S-4 that constitutes an
EGC’s initial public offering of common equity securities or in a Form S-4
filed subsequent to the EGC’s initial public offering of common equity
securities but prior to the earlier of the filing or the filing deadline of
its first Form 10-K.
See related discussion in Section
2200.1 to 2200.5 for the periods for which target financial
statements need to be presented in a Form S-4 and Sections 2200.6 and 2200.7 for when target
financial statements need to be audited in an S-4.
10220.7 Financial Statements of a Target Company in a Proxy
Statement
(Last updated: 11/9/2016)
To the extent that target financial statements are required in a proxy statement
(see Section 1140.3), the staff will not
object if two years of the target’s annual financial statements and interim
financial statements are presented in a proxy statement filed after the
legal acquirer’s initial public offering of common equity securities but
prior to the filing or the filing deadline of the legal acquirer’s
first Form 10-K only if:
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The legal acquirer is an EGC that is not a shell company, or
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The legal acquirer is a shell company EGC (such as a SPAC EGC) and the target would be an EGC if it were conducting an initial public offering of common equity securities.
10230 Accounting Standards Transition Period Accommodation
10230.1 An EGC may elect to defer compliance with new
or revised financial accounting standards until a company that is
not an issuer (as defined under section 2(a) of the Sarbanes-Oxley Act of
2002) is required to comply with such standards, if such standards apply to
companies that are not issuers. The term new or revised financial
accounting standards refers to any update issued by the FASB to its
Accounting Standards Codification after April 5, 2012, the date of the
enactment of the JOBS Act. See Section 10300
for companies filing under IFRS as issued by the IASB.
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An EGC must make such choice at the time the company is first required to file a registration statement, periodic report, or other report and must notify the Commission of such choice.
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An issuer must comply with the transition provisions for all new or revised accounting standards in the same manner. In other words, it may not apply some new and revised financial accounting standards at the same date a non-EGC is required to comply, but defer the adoption of other standards.
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An EGC may choose not to take advantage of the “extended transition period” exemptions for EGCs and instead comply with the requirements that apply to an issuer that is not an EGC. Any decision to forego the extended transition period for complying with new or revised accounting standards is irrevocable.
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If an EGC chooses to take advantage of the extended transition period, the company can later decide otherwise (i.e., “opt in” by complying with the financial accounting standard effective dates applicable to non-EGCs), so long as it complies with the requirements in Sections 107(b)(2) and (3) of the JOBS Act, which state that an EGC may not select some standards to comply with and not others, and must continue to comply with such standards to the same extent as a non-EGC is required to comply for as long as the company remains an EGC. This decision should be disclosed in the first periodic report or registration statement following the company’s decision and is irrevocable.
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An EGC that has elected to take advantage of the extended transition period provision may early adopt a new or revised accounting standard if permitted by the standard, without being deemed to have “opted in” for purposes of subsequent new or revised financial accounting standards.
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EGCs that take advantage of an extended transition period provision are encouraged to review their plans to adopt accounting standards upon losing EGC status and to discuss with the staff any issues they foresee in being able to timely comply. Generally, if an EGC loses its status after it would have had to adopt a standard absent the extended transition, the issuer should adopt the standard in its next filing after losing status. However, depending on the facts and circumstances, the staff may not object to other alternatives. (Last updated: 12/1/2017)
10230.2 Nonpublic entities are specifically excluded
from the scope of certain financial accounting standards. The provisions
regarding the extended transition periods available to EGCs do not exempt
EGCs from compliance with accounting standards applicable to public
entities. Rather, EGCs, like non-EGCs, must evaluate the scope of each
financial accounting standard.
10230.3 SAB Topic 11M provides disclosure guidance with respect to recently issued
accounting standards that will be adopted by the registrant in a future period.
SAB Topic 11M specifies that one of the disclosures that should generally be considered by a registrant is the effective date of such standards. For each
recently issued accounting standard that will apply to its financial statements, an
EGC that chooses to take advantage of the extended transition periods should
disclose the date on which adoption is required for non-EGCs and the date on
which the EGC will adopt the recently issued accounting standard, assuming it
remains an EGC as of such date.
10240 Internal Control Over Financial Reporting [SOX 404] Accommodation
10240.1 Section 103 of the JOBS Act provides that an EGC
is not required to comply with the requirement to provide an auditor’s
report on ICFR under Section 404(b) of the Sarbanes-Oxley Act for as long as
it qualifies as an EGC.
10240.2 An EGC is not exempt from the requirement
to perform management’s assessment of internal control over financial
reporting (SOX 404(a) and the disclosure requirement of Item 308(a) of
Regulation S-K). For EGCs that are newly public companies, see Section 4310.6.
10300 Foreign Private Issuers
10310 General
10310.1 A foreign private issuer that qualifies as an
EGC may comply with the scaled disclosure provisions available to EGCs to
the extent relevant to the form requirements for foreign private
issuers.
10310.2 A foreign private issuer that qualifies as an
EGC and reconciles its home country GAAP financial statements to U.S. GAAP
may take advantage of the extended transition period discussed in Section 10230 for complying with new or revised
financial accounting standards in its U.S. GAAP reconciliation.
10310.3 EGCs that are foreign private issuers may not
report under IFRS for Small and Medium-sized Entities or a separate
set of local GAAP standards for nonpublic entities.
10320 Number of Years of Registrant Financial Statements to be Presented under IFRS
10320.1 First Time Adoption of IFRS as Issued by the IASB — Paragraphs 6 and 21 of
IFRS 1, First-time Adoption of International Financial Reporting Standards,
require a first-time adopter of IFRS to present an opening IFRS statement of
financial position at the date of transition to IFRS. In order for a first-time
adopter to assert that its financial statements are prepared in accordance with IFRS as issued by the IASB, it must include three statements of financial
position, even if the first-time adopter is an EGC.
10320.2 Retrospective Changes and Reclassifications under IFRS as Issued by the
IASB — A foreign private issuer that is not a first-time adopter of IFRS is
required by paragraph 10(f) of IAS 1, Presentation of Financial Statements, to
provide three statements of financial position when it applies an accounting
policy retrospectively, makes a retrospective restatement, or reclassifies items in
its financial statements. In order to assert that its financial statements are
prepared in compliance with IFRS as issued by the IASB, a foreign private
issuer must include three statements of financial position, even if it is an EGC.
10330 Multi-Jurisdictional Disclosure System (“MJDS”)
10330.1 A Canadian issuer filing under MJDS may qualify as an EGC. While the
disclosure requirements for the Canadian issuer would continue to be
established under its home country standards in accordance with the MJDS,
other provisions of Title I, such as the deferral of compliance with Section
404(b) of the Sarbanes-Oxley Act, would be available to an MJDS filer that
qualifies as an EGC.