United States: The IPO And Public Company Primer
A Practical Guide To Going Public, Raising Capital And Life As A Public Company

INTRODUCTION

Initial public offering (IPO) deal type, volume and size have changed significantly over the last decade. From 2001 through 2003, following the burst of the dot-com bubble, U.S. IPOs raised comparatively modest total proceeds of slightly more than $80 billion. The market revived from 2004 to 2007, producing about 200 U.S. IPOs and raising approximately $40 billion each year. In contrast to the market prior to 2001, this market was characterized by larger and more seasoned IPO companies, many with private-equity sponsors.

The effects of recession, however, made 2008 one of the worst IPO markets in decades. The market bottomed out after the world dipped into recession following the collapse of the financial markets. 2008 produced only 31 IPOs, with an astonishing single IPO for the entire fourth quarter. 2009 began the way 2008 ended. In March of 2009, stock indices fell to multi-year lows and there were only two IPOs in the first quarter. This would prove to be the low point of the market and 2009 ended as a modest rebound year, totaling 54 IPOs – 30 in the fourth quarter – with gross proceeds of $19.2 billion. 2009 also continued the trend of larger, more seasoned IPOs; the median annual revenue of IPO companies soared from $113.5 million to $229.0 million.

In 2010, the U.S. IPO market showed continued signs of improvement. More deals were completed in the first three quarters than in 2008 and 2009 combined, and in the fourth quarter the General Motors IPO alone raised $18.2 billion. The General Motors IPO aside, a greater concentration of small and midcap offerings reduced average offering proceeds significantly while the percentage of China-based IPOs increased to over one quarter of U.S. deal volume. In total, U.S. IPOs raised $38.7 billion in 2010 and global IPO proceeds rose to within 12% of 2007 peak levels.

Drawing on a strong deal pipeline from the fourth quarter of 2010, U.S. IPO markets continued to improve in the first half of 2011, only to falter in the third quarter with the relapse of the European debt crisis and decreasing demand for Chinese IPOs. Bolstered by the monetary policies of the Federal Reserve, a strong market for technology IPOs, and several large private equity/venture capital backed deals, however, the U.S. IPO market performed well relative to the rest of the global marketplace. U.S. IPOs raised $36.3 billion in 2011.

Buoyed by surging interest in the IPOs of maturing Web 2.0 companies such as Groupon, LinkedIn and Zynga, the technology sector gained a large share of U.S. IPO proceeds in 2011. Twenty-four internet companies went public and four of the five largest internet IPOs in U.S. history combined to raise nearly $2.5 billion. In addition to internet companies, software companies, including on-demand software firms, such as Cornerstone and OnDemand, contributed to the steady revival of this corner of the U.S. IPO market.

Although overall deal flow in the sector remained well below pre-2008 levels, private equity and venture capital backed IPOs raised $28.3 billion in 2011, with 86 such deals accounting for 78% of total U.S. IPO proceeds. The private equity backed offerings of HCA, Kinder Morgan and Nielsen combined to raise $8.3 billion in the first quarter.

Also notable in 2011 was the plunge in U.S.-listed Chinese IPOs, which resulted from both mounting evidence of fraud and improper reporting on the part of such companies and the steady cooling of the Chinese economy. Only 12 Chinese companies listed in the United States in 2011, down from 41 in 2010.

In 2012, the U.S. market produced 102 IPOs, a 5% increase over 2011, and gross proceeds increased 22%, from $28.7 billion in 2011 to $35.1 billion. Facebook's $16 billion offering contributed heavily to this increase. Two other IPOs topped $1 billion – Santander ($2.9 billion) and Realogy ($1.08 billion). However, median IPO size dropped to $94.3 million from $140 billion in 2011, which can be partly attributed to an increase in VC-backed IPOs to 51 from 42.

In 2013, a total of 222 companies went public in the U.S., raising more than $59 billion. Twitter's high profile IPO accounts for $1.8 billion of this total. Other notable IPOs included Hilton Worldwide's $2.3 billion IPO, the largest-ever hotel IPO. In addition to the technology sector, healthcare saw a significant increase in the number of IPOs to 38 in 2013 compared with 21 in 2012.

Many of 2013's notable IPOs used the confidential submission process established by the JOBS Act, including Twitter and Manchester United. For much of 2013, confidential submissions outpaced traditional IPOs, a trend that is expected to continue.

The information in this manual is organized by topic in the following chapters.

Chapter I, DECIDING WHETHER TO GO PUBLIC, focuses on the factors that should be evaluated in deciding whether to go public, including the benefits for "emerging growth companies" (EGCs) of the JOBS Act.

Chapter II, PREPARING TO GO PUBLIC, analyzes matters that the company should review in its business, its operations, its governance and its personnel to ensure that it is prepared to go public.

Chapter III, KICKING-OFF THE PUBLIC OFFERING, reviews the organizational meeting, structuring issues, the requirements for and drafting of the registration statement and issues related to pre-filing publicity.

Chapter IV, FILING THE REGISTRATION STATEMENT, sets forth the mechanics of filing the registration statement with the Securities and Exchange Commission (SEC).

Chapter V, THE WAITING PERIOD, discusses the activities of the company between the initial filing of the registration statement and the time that the registration statement is declared effective by the SEC.

Chapter VI, THE POST-EFFECTIVE PERIOD, contemplates events that occur once the SEC declares the registration statement effective.

Chapter VII, RAISING CAPITAL AS A PUBLIC COMPANY, discusses the various ways that public companies raise additional capital in the public and private capital markets.

Chapter VIII, LIFE AS A PUBLIC COMPANY, details the obligations of the company and certain of its shareholders to comply with disclosure requirements and trading restrictions imposed by the Securities Act of 1933 (Securities Act), the Securities Exchange Act of 1934 (Exchange Act), the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley), the Dodd-Frank Act and the rules of the national stock exchanges.

Chapter IX, CROSS-BORDER SECURITIES TRANSACTIONS AND COMPLIANCE, discusses the applicability of the U.S. federal securities laws to non-U.S. companies that conduct public offerings in the U.S. (including IPOs) and/or list their securities on a U.S. stock exchange. This chapter also discusses offshore securities transactions conducted by U.S. companies under Regulation S, which provides an exemption from registration under the Securities Act, and cross-border business combination transactions.

Chapter X, SECURITIES ISSUANCES IN CONNECTION WITH MERGERS, ACQUISITIONS AND OTHER BUSINESS COMBINATIONS, provides an overview of the advantages a public company has in making acquisitions and discusses how a public company may repurchase its own shares. In addition, this chapter provides a brief description of the process of taking a public company private.

Chapter XI, THE HIGH YIELD BOND MARKET AND IPOS, discusses the use of high yield bonds as a corporate finance instrument, including both public and private offerings of high yield bonds and the role that such bonds may play in IPOs of a company's equity securities. This chapter also provides an overview of some typical features of high yield bonds.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.