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IPO Number 1053 July 14 2010

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									                                                                                               Number 1053                                July 14, 2010

                               Client Alert
                                   Latham & Watkins Corporate Department
                                                   Capital Markets Group

                       Upsizing and Downsizing Your IPO
                       The reds have been printed; the deal is                             Getting Started:
                       on the road; and the champagne is on
                       ice. Now, all that is left is for the IPO
                                                                                           The Importance of the
                       investors to step up and buy the stock.                             Earlier Filings
                       It’s a tempting moment to relax — but                               Let’s start with a review how you got to
                       an experienced deal lawyer knows                                    where you are now.
                       better. This is the time to start preparing
                       for the possibility that the deal will be                           When you first filed the registration
                       wildly oversubscribed or will struggle                              statement, you had to complete the
                       mightily. In either case, the question                              “Calculation of Registration Fee” table
                       that will shortly come your way is                                  on the front cover. The primary purpose
                       “How much can the deal be upsized or                                of the fee table was to calculate the
                       downsized at pricing?”                                              amount of filing fees required to be
                                                                                           paid to the SEC at that time. Several
“The purpose of        To answer that seemingly simple                                     amendments later, when your deal was
 this Client Alert     question, you will need to break it into                            ready to go to investors, a preliminary
                       three component parts:                                              prospectus was filed showing the
 is to provide you
                       • Was your registration statement                                   number of shares expected to be sold
 with the tools          accurate and complete as of the time                              and a “bona fide” estimate of the
 you need to react       it became effective?                                              price range per share as required by
 quickly and wisely    • Have you provided investors with all                              Regulation S-K Item 501(b)(3). That
                         the information they need to make an                              range was very likely a $2 range, in
 to questions about      informed investment decision prior to                             keeping with the informal SEC Staff
 pricing outside the     confirming orders?                                                policy for deals expected to price below
 range when the        • Do you owe the SEC any additional                                 $20 per share (if the upper limit is above
                         filing fees?                                                      $20 per share, the informal policy is
 moment of truth                                                                           that a price range of up to 10 percent
 arrives.”             Getting to the bottom of these points is                            of the upper limit is bona fide). The
                       a surprisingly complex undertaking. The                             price range prospectus was circulated
                       rules in this area are technical and not                            to investors at the beginning of the road
                       always intuitive, and you may be asked                              show.
                       to make some difficult judgment calls
                       under significant time pressure. The                                Now, the deal is on the road. Investor
                       purpose of this Client Alert is to provide                          feedback is rolling in. If investor demand
                       you with the tools you need to react                                is stronger than anticipated, the issuer
                       quickly and wisely to questions about                               and the selling stockholders may want
                       pricing outside the range when the                                  to sell more shares or increase the price
                       moment of truth arrives.                                            per share being sold, or both. On the
                                                                                           other hand, if a crisis in some far-away
                                                                                           part of the world happens to come to
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Latham & Watkins | Client Alert

roost while your deal is on the road, the       same price range prospectus that was
underwriters may have to struggle to            circulated to investors, how far can
complete a smaller deal, involving fewer        the deal be upsized or downsized at
shares or a lower price per share, or both.     pricing and after effectiveness without
Let’s review the tools in your toolbox for      having to go back to the SEC for
upsizing or downsizing your deal.               permission?”
                                              In order to understand the magic of
Options Prior to Effectiveness                Rule 430A, you will need to master the
                                              interplay between several key provisions
Until your registration statement has
                                              of the Securities Act and a number of
been declared effective by the SEC,
                                              rules and Compliance and Disclosure
you can revise your deal all you want
                                              Interpretations (C&DIs) published by
in a pre-effective amendment with a
                                              the SEC Staff. Once you have mastered
new price range and/or a new number
                                              these rules, you will need to answer
of securities to be sold. You may need
                                              these three questions:
to pay additional filing fees if you are
upsizing, but it’s no problem to do so. If    • Is the “Section 11 file” complete as of
demand is through the roof, this may be         the effective time of the registration
an option to consider.                          statement?
                                              • Is the “Section 12 file” complete as of
However, using a pre-effective
                                                the time you want to start confirming
amendment to upsize or downsize a
deal after the price range prospectus
                                              • Do you owe the SEC any more filing
has been distributed to investors is
typically a last resort in our experience.
Among other things, there can be
unwelcome timing implications (for            Section 11 and Section 12
example, you will need to obtain a new        Let’s start with a few words about
auditor’s consent and updated signature       the primary liability provisions of the
pages and clear any comments from             Securities Act.
the SEC Staff on the new disclosure).
                                              Section 11(a) of the Securities Act
In addition, the new filing containing
                                              imposes liability if any part of a
the amended price range could send a
                                              registration statement, at the time
signal to the market about pricing that
                                              it became effective, “contained an
may be premature. Particularly for deals
                                              untrue statement of a material fact or
that are in trouble and may need to
                                              omitted to state a material fact required
be downsized, refiling the registration
                                              to be stated therein or necessary
statement with a revised price range can
                                              to make the statements therein not
spell disaster.
                                              misleading.” Section 11 liability only
                                              covers statements made in a registration
Options After Effectiveness                   statement at effectiveness. We think
                                              of the registration statement at the
Those who qualify for the special
                                              magic moment of effectiveness as the
treatment offered by Rule 430A and
                                              “Section 11 file.” This is a helpful way
the related rules will find it much
                                              to remember that Section 11 is a highly
more attractive to make the necessary
                                              technical provision, in the sense that it
changes to the terms of the deal after
                                              looks only at: (a) what is or is deemed
effectiveness.1 In most cases, therefore,
                                              to be in the registration statement (b) at
the question for the deal team will
                                              the time it became effective.2
be whether the proposed changes to
the number of shares to be sold and           By contrast, Section 12(a)(2) of the
the price per share qualify for Rule          Securities Act is not limited to the
430A’s magic? Put another way, the key        registration statement and is not linked to
question is this:                             the moment of effectiveness. It imposes
                                              liability on any person who offers or
    “Assuming we go effective on a
                                              sells a security in a registered offering
    registration statement containing the

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by means of a prospectus, or any oral          Rule 430A
communication, which contains “an              Rule 430A is a very special rule. It
untrue statement of a material fact or         permits a registration statement to be
omits to state a material fact necessary in    declared effective without containing
order to make the statements, in the light     final pricing information. Instead,
of the circumstances under which they          it allows you to insert information
were made, not misleading.” Section            retroactively into a registration
12(a)(2) is less technical and more holistic   statement and have it be treated as if
than Section 11. Section 12(a)(2) takes        it were there as of its effective date.
into account all oral statements, free         Rule 430A provides that pricing-
writing prospectuses and statements in         related information (which includes
the price range prospectus, rather than        the price per share and the number of
focusing exclusively on the registration       shares offered) that is contained in a
statement.                                     prospectus filed pursuant to Rule 424(b)
Under Securities Act Rule 159 (which           after effectiveness of the registration
we discuss in greater detail below),           statement will be deemed to have been
Section 12 looks to the sum of what            part of the registration statement as of
investors have been told at the time the       the effective date. In other words, Rule
underwriters confirm orders. Section           430A allows you to tinker with your
12’s focus, therefore, is the price range      “Section 11 file” after the fact and have
prospectus sent to investors and any           the changes travel backwards in time.
additional information that may have           Rule 430A is a particularly useful tool
been conveyed to investors (orally or in       for complying with Section 11, and we
writing) on or before the time of pricing.     are going to review all of its glorious
We think of this collection of information     twists and turns below. Keep in mind,
as the “Section 12 file.”                      however, Rule 430A’s two important
In order to deal with all of the issues        limitations. First, it only applies to
that arise in the context of changing          pricing information.3 And second,
the size and price of an IPO after the         Rule 430A does not help you make
registration statement has been declared       corrections to your “Section 12 file,” as
effective, you will need to keep in mind       it does not allow you to retroactively
both your “Section 11 file” and your           add to the information actually given to
“Section 12 file.”                             investors at the time of pricing.
                                               Here is a summary of Rule 430A from a
                                               40,000 foot perspective:

 If you are…     Then you         And you can…            But you would need to…
                 should use…

 Upsizing        Instruction to   Increase the price    • File an immediately
 your deal       Rule 430A(a)     per share and/or        effective registration
                                  number of shares,       statement under Rule 462(b)
                                  so long as the          to register the increase in
                                  aggregate size of the   shares/increase in deal
                                  revised deal does not   size (or a post-effective
                                  exceed 120 percent      amendment if the increase
                                  of the amount shown     is greater than 20 percent)
                                  in the fee table in   • Consider whether
                                  the registration        additional disclosure (oral
                                  statement at the time   or by means of a free
                                  of effectiveness        writing prospectus) needs to
                                                          be delivered to purchasers
                                                          prior to confirmation of sale

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Latham & Watkins | Client Alert

 If you are…      Then you         And you can…             But you would need to…
                  should use…

 Downsizing       C&DI 627.01      Decrease the price       • Consider whether
 your deal                         per share and/or           additional disclosure (oral
                                   decrease the number        or by means of a free
                                   of shares sold, so         writing prospectus) needs to
                                   long as the size of        be delivered to purchasers
                                   the revised deal is        prior to confirmation of sale
                                   not less than the
                                   lower end of the
                                   deal size reflected
                                   in the price range
                                   prospectus minus
                                   20 percent of the
                                   maximum deal size
                                   reflected in the price
                                   range prospectus

Now that you have the big picture, let’s          and price represent no more than a
go through it again at a more granular            20 percent change in the maximum
level.                                            aggregate offering price set forth in
                                                  the “Calculation of Registration Fee”
                                                  table in the effective registration
Instruction to Rule 430A(a)
                                                  statement. [Emphasis added.]
Rule 430A’s most important contribution
to pricing outside the range is found in       In other words, where the 20 percent
the instruction to paragraph (a), which        safe harbor threshold is not exceeded,
states (in full):                              changes in price and deal size can be
                                               poured backwards in time into the
    Instruction to Paragraph (a). A
                                               registration statement using a Rule
    decrease in the volume of securities
                                               424(b) filing of the final prospectus after
    offered or change in the bona fide
                                               the effectiveness of the registration
    estimate of the maximum offering
                                               statement and will be deemed to have
    price range from that indicated in
                                               been part of the registration statement at
    the form of prospectus filed as part
                                               the time it became effective for purposes
    of a registration statement that is
                                               of Section 11. This is a very useful
    declared effective may be disclosed
                                               device indeed. It allows you to change
    in the form of prospectus filed with
                                               the size of your deal by 20 percent in
    the Commission pursuant to Rule
                                               either direction without having to go
    424(b) or Rule 497(h) under the
                                               back to the SEC. This timing advantage
    Securities Act so long as the decrease
                                               is critical when you are trying to price
    in the volume or change in the price
                                               a deal. Having to go back to the SEC
    range would not materially change
                                               to get a post-effective amendment
    the disclosure contained in the
                                               declared effective is often not consistent
    registration statement at effectiveness.
                                               with holding a book of orders together
    Notwithstanding the foregoing, any
                                               (particularly in the context of a deal
    increase or decrease in volume (if the
                                               that is being downsized). As a result,
    total dollar value of securities offered
                                               understanding the exact scope of this 20
    would not exceed that which was
                                               percent safe harbor is critical.
    registered) and any deviation from
    the low or high end of the range may
    be reflected in the form of prospectus     C&DI 227.03 (January 26, 2009)
    filed with the Commission pursuant         C&DI 227.03 reads (in full) as follows:
    to Rule 424(b)(1) or Rule 497(h) if, in
                                                  Question: A registrant omits pricing
    the aggregate, the changes in volume
                                                  information from the prospectus

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Latham & Watkins | Client Alert

    in a registration statement at the          changes to your registration statement
    time of effectiveness in reliance on        without SEC review (i.e., without filing
    Rule 430A. Is it required to reflect        a post-effective amendment) even if
    pricing information or the inclusion of     those changes are material. This special
    additional securities in a post-effective   privilege is limited to pricing information
    amendment?                                  as contemplated by Rule 430A, but it
    Answer: The second sentence of the          is a very special privilege nevertheless.
    Instruction to Rule 430A provides           The second point is equally important
    that a Rule 424(b) prospectus               — changes in excess of 20 percent may
    supplement may be used, rather than         not be material (and hence may not
    a post-effective amendment, when            require SEC review of a post-effective
    the 20% threshold is not exceeded,          amendment).
    regardless of the materiality or non-
                                                How can this be, you ask? Good
    materiality of resulting changes to
                                                question. Consider, for example, a $1
    the registration statement disclosure
                                                billion offering that is half primary and
    that would be contained in the Rule
                                                half secondary shares. If the secondary
    424(b) prospectus supplement. When
                                                shares are reduced to $250 million, but
    there is a change in offering size
                                                the primary shares stay at $500 million,
    or deviation from the price range
                                                the offering has been reduced by 25
    beyond the 20% threshold noted in
                                                percent but the reduction may well
    the second sentence of the Instruction,
                                                not be material. There will still be a
    a post-effective amendment would
                                                very substantial public “float” after the
    be required only if such change or
                                                offering and the proceeds to the issuer
    deviation materially changes the
                                                (and hence the use of proceeds), the pro
    previous disclosure. Regardless of the
                                                forma number of shares outstanding and
    size of the increase, in the case of a
                                                the pro forma earnings per share will not
    registration statement that is not an
                                                change at all. This sort of fact pattern
    automatic shelf registration statement,
                                                is right in the center of C&DI 227.03’s
    a new registration statement must
    be filed to register any additional
    securities that are offered. Additional
    securities cannot be registered by          C&DI 627.01 (April 24, 2009)
    post-effective amendment except             So far, so good. It all seems pretty
    on automatic shelf registration             clear — Rule 430A allows you to go up
    statements. [Emphasis added.]               or down 20 percent from the maximum
                                                aggregate offering price reflected in the
This C&DI establishes two important
                                                fee table. But one key question remains
• For purposes of Rule 430A (and
                                                What does Rule 430A have to say about
  hence the Section 11 file), retroactive
                                                the deal size actually reflected in the
  changes in price within the 20 percent
                                                prospectus circulated to investors, as
  threshold can be made after the fact
                                                opposed to the maximum deal size
  by way of a Rule 424(b) prospectus
                                                reflected in the fee table? What if (as is
  even if the effects of those changes
                                                often the case) these two amounts are
  are material, and
                                                not aligned?
• Even changes outside the 20 percent           This is where C&DI 627.01 comes into
  threshold can be made using a Rule            play. C&DI 627.01 reads (in full) as
  424(b) prospectus if the changes do           follows:
  not materially change the disclosure.
                                                  627.01 The instruction to paragraph
These are important points — and                  (a) of Rule 430A provides that
not entirely intuitive — so let’s spend           changes in volume and price
another minute here. Rule 430A                    representing no more than a 20%
effectively lets you make pricing-related         change in the maximum offering price
                                                  set forth in the registration statement

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Latham & Watkins | Client Alert

    fee table may be made pursuant to a      this means that you will want to use
    Rule 424(b)(1) prospectus supplement.    C&DI 627.01 when downsizing and the
    The 20% threshold may be calculated      instruction to paragraph (a) of Rule 430A
    using the high end of the range          when upsizing.
    in the prospectus at the time of
    effectiveness and may be measured
                                             The Section 12 File and the
    from either the high end (in the case
    of an increase in the offering price)    Importance of Common
    or low end (in the case of a decrease    Sense
    in the offering price) of that range.
                                             Knowing whether you are within the
    [Emphasis added]
                                             Rule 430A safe harbor is not the end
C&DI 627.01 permits you to calculate         of the analysis — after all, the Rule
the 20 percent amount for purposes           contemplates that there could be
of downsizing your deal in a very            material changes to the disclosure that
favorable way. As an alternative to the      would fall within the safe harbor. Rule
20-percent-of-the-amount-in-the-fee-         430A is a fabulous tool for dealing with
table approach contemplated by the           the Section 11 file, but it doesn’t help
instruction to paragraph (a) of Rule         you with the Section 12 file. Let’s tackle
430A, C&DI 627.01 allows you to derive       the Section 12 file now.
your 20 percent amount by multiplying
the upper end of the range in the
                                             Securities Act Rule 159; Free
price range prospectus by 20 percent.4
                                             Writing Prospectuses; Exchange
You can then add that amount to the
                                             Act Rule 15c2-8(b)
upper end of the range in the price
                                             Rule 159, which was introduced as
range prospectus if you are upsizing, or
                                             part of the securities offering reforms
subtract that amount from the bottom
                                             that became effective in 2005, adds
of the range if you are downsizing, to
                                             an important wrinkle to the Section 12
figure out what share count and price
                                             landscape. Rule 159 makes clear that,
per share will be within the safe harbor.
                                             for purposes of Section 12, information
Since 20 percent of the upper end of the
                                             conveyed to a securities purchaser
price range is by definition greater than
                                             after the time of sale does not count
20 percent of the lower end of the price
                                             for purposes of determining whether
range, C&DI 627.01 effectively broadens
                                             the Section 12 file was complete at the
the scope of the Rule 430A safe harbor
                                             moment that liability attaches. In other
for troubled deals.
                                             words, Section 12 liability is a function
The approach in C&DI 627.01 represents       of what you actually gave or told the
an alternative to the approach in the        purchaser prior to confirming the order
instruction to paragraph (a) of Rule         — anything delivered after the moment
430A, and the SEC Staff takes the            of truth does not count.
positions that you cannot “mix and
                                             This means that those material pricing
match” between the C&DI and the
                                             changes that can be retroactively
instruction to paragraph (a). As a result,
                                             poured into the Section 11 file after the
if you are following C&DI 627.01 you
                                             fact under Rule 430A must actually be
may not take 20 percent of the amount
                                             conveyed to purchasers in real time
reflected in the fee table and subtract
                                             prior to confirming orders in order for
that from the lower end of the price
                                             the Section 12 file to be up to snuff.
range, even though that might yield a
                                             There are a number of ways to transmit
lower floor on your transaction than 20
                                             the required information — the rules
percent of the upper end of the range
                                             are agnostic as to the actual method of
(since the fee table often registers a
                                             conveyance — but the key point is that
larger transaction than the upper end of
                                             the conveyance must be made and it
the range). Either you calculate using
                                             must be made prior to confirming orders.
the fee table or you calculate using the
range in the price range prospectus, but     Market practice is that simple
you can’t have it both ways. In practice,    information that can be effectively

6    Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

reduced to sound bites is conveyed           • The level of beneficial ownership by
orally. It is customary in deals pricing       members of senior management or
within the range, for example, to convey       other significant stockholders; and
the final pricing information orally.        • Dilution.
Oral conveyance is also used in many
                                             The goal is to have disclosure that
upsizing and downsizing scenarios.
                                             allows investors to see how changes in
The easiest example of this would be
                                             share price or deal size ripple through
a 20 percent decrease in deal size in
                                             critical elements of the disclosure.
an all-secondary offering by a selling
                                             Ideally, the price range prospectus
stockholder. All the investor needs to
                                             will present key disclosures in an “if/
know in that case is how many shares
                                             then” format (“We will apply the net
are being sold and at what price — there
                                             proceeds from this offering first to repay
are no collateral disclosure implications
                                             all borrowings under our credit facility
to the change in deal size in that
                                             and then, to the extent of any proceeds
example.5 The disclosure in the price
                                             remaining, to general corporate
range prospectus will not otherwise
                                             purposes,” for example).
change at all.
                                             Finally, where the changes are so
More complicated deal changes may
                                             fundamental that the original price
require that a free writing prospectus
                                             range prospectus must be completely
summarizing the changes be circulated
                                             rewritten, it may be necessary to
to accounts in writing as contemplated
                                             recirculate a completely new price
by Rule 433. An example of this
                                             range prospectus in order to satisfy
situation might be a decrease in offering
                                             Exchange Act Rule 15c2-8(b). Rule
size that results in a change to the
                                             15c2-8(b) requires that brokers and
use of proceeds flowing through the
                                             dealers participating in an IPO “deliver
pro formas. The decision whether to
                                             a copy of the preliminary prospectus
convey the new information orally or in
                                             to any person who is expected to
writing will in part depend on whether
                                             receive a confirmation of sale at least
the price range prospectus circulated
                                             48 hours prior to the sending of such
to investors contained “sensitivity
                                             confirmation.” [Emphasis added.]
analysis” explaining how the company’s
plans would change if the actual             The line between a complete
proceeds turned out to be more or less       recirculation and a supplemental
than the amount assumed in the price         circulation of changed pages is a blurry
range prospectus. The more sensitivity       one. The free writing prospectus concept
analysis that is included in the price       introduced by Rule 433 in the 2005
range prospectus, the more likely it         securities offering reforms was intended,
will be possible to convey the missing       we believe, to obviate the need for a full
information orally at the time of pricing.   recirculation of a completely new price
This is a point to keep in mind in the       range prospectus in all but the most
early drafting sessions.                     extreme cases. However, when changed
                                             pages become so pervasive that the
There is no hard-and-fast rule about
                                             original price range prospectus can no
how much sensitivity analysis will do,
                                             longer be said to be “the preliminary
and what topics need to be covered.
                                             prospectus” within the meaning of Rule
Some items to evaluate might include:
                                             15c2-8(b), then a full recirculation may
• Use of proceeds, particularly where        be required. If the changes are less than
  stated uses would need to be changed       pervasive, a free writing prospectus
  or new uses added (for example,            summarizing the changes should suffice.
  in the case of unexpectedly large
                                             The key import of this distinction
                                             between a full recirculation of a
• Pro forma earnings per share
                                             new price range prospectus and a
• The size of the “float” after the
                                             supplemental circulation of a free
                                             writing prospectus summarizing the
• The company’s financial condition
                                             changes relates to timing. If you

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have tripped the Rule 15c2-8(b) wire,          Chances are, you opted to calculate
you need to give investors 48 hours            the registration fee for purposes of the
(generally thought to mean two full            fee table under Rule 457(o). You could
business days)6 to consider the revised        have used Rule 457(a) instead, but since
disclosure. If you are in free writing         doing so would let the market know the
prospectus land, however, you may              likely per share price (i.e., maximum
conclude that investors only need a            deal size divided by the number of
few hours (or even minutes) to digest          shares registered), most deal teams opt
the new disclosure. The SEC Staff has,         to use Rule 457(o).8 It’s unusual in our
to date, refrained from offering any           experience for a deal team to elect to
guidance on the question “How long is          tip its hand about the expected price
long enough?” as it relates to delivery        per share at the time the registration
of new information for purposes of Rule        statement is first filed.
159 and Section 12. The prevailing view
                                               When the time comes to file your price
among law firms is that most information
                                               range prospectus, you have a choice:
can be digested upon receipt and only
                                               either keep using Rule 457(o), or refile
very complicated changes need a full
                                               your fee table under Rule 457(a).
business day to be absorbed. Somewhat
complicated changes may need more              If you choose to refile under Rule 457(a),
than a few minutes to be digested but          you will not have to pay more filing fees
less than a full business day.                 if your offering price per share later
                                               increases — that’s baked right into the
We continue to feel that the better
                                               text of the Rule. You will, however, be
view of Rule 433 and the free writing
                                               required to pay additional filing fees if
prospectus that it ushered in is that
                                               you later increase the number of shares
a properly crafted and conveyed free
                                               to be offered, even if the total offering
writing prospectus should eliminate the
                                               size (number of shares sold times sale
need for a full recirculation in all but the
                                               price) does not go above the original
most extreme cases.7
                                               estimate used to calculate the original
                                               filing fee. The added shares will need to
Filing Fee Issues —                            be registered, either on an immediately
Securities Act Rules 457                       effective registration statement under
                                               Rule 462(b) or via a post-effective
and 462(b)                                     amendment — we discuss below how
                                               that is done.
Rule 457                                       If you stick with Rule 457(o), you will not
Although Rule 457 deals with the               have to file a new registration statement
seemingly mundane issue of the                 and pay additional filing fees if your per
calculation of the registration fee,           share price goes down and you increase
the choice you make under Rule 457             the number of shares offered so as to
will have a significant impact on your         maintain the original aggregate offering
options at the moment of truth.                price. See C&DI 640.05. You will,
Remember that you initially filed your         however, be required to pay additional
registration statement with a fee table,       filing fees if you keep the same number
calculated either:                             of shares and increase the per share
                                               price (thereby increasing the aggregate
• Under Rule 457(o) on the basis of the
                                               deal size).
  amount of proceeds the issuer wanted
  to raise, or                                 Which route is preferable? Refiling
• Under Rule 457(a) on the basis of the        under Rule 457(a) allows you to increase
  number of shares to be sold and a            the price per share (but not the number
  bona fide estimate of the sale price         of shares) without filing an additional
  per share.                                   registration statement or post-effective
                                               amendment. By contrast, staying with
                                               Rule 457(o) allows you to increase the
                                               number of shares and decrease the

8   Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

price per share so as to maintain overall    at effectiveness — even though that fee
deal size, without filing an additional      table was calculated at the old price
registration statement or post-effective     per share. See C&DI 640.03. To take an
amendment. So it all boils down to           example, imagine that your fee table
whether you think you will be upsizing       at effectiveness reflected 11.5 million
price only (and leaving the number of        shares and a price range of $8-$10 per
shares unchanged) or will be playing         share, for a maximum aggregate deal
with both price and number of shares in      size of $115 million. At pricing, the
order to keep the same total aggregate       number of shares is increased by 1.5
deal size. Many deal teams elect to          million and the price is increased to $12
switch to Rule 457(a) at the time of         per share. The number of additional
printing the price range prospectus,         shares times the price equals $18
because increasing the price per share       million. Since this is less than 20 percent
at pricing is a more likely outcome than     of $115 million (i.e., $23 million), you
increasing the number of shares and          could use Rule 462(b) to register the
decreasing the price.                        new shares. The fact that the entire
                                             deal is actually being upsized by more
                                             than 20 percent (since $115 million plus
Rule 462(b)
                                             20 percent equals $138 million, and
How do you go about adding additional
                                             13 million shares times $12 per share
shares (if you are using Rule 457(a)) or
                                             equals $156 million) is disregarded if
increasing the deal size (if you are using
                                             you are using Rule 457(a).
Rule 457(o))? You have two choices
— either file an immediately effective       The calculation is done differently if
registration statement under Rule 462(b),    you are staying with Rule 457(o). In that
or file a post-effective amendment and       case, you multiply all of the shares being
wait for the SEC Staff to declare you        offered (including the additional shares)
effective.9                                  by the new price per share and then
                                             look to see if you have increased total
If you can qualify to use Rule 462(b),
                                             deal size by more than 20 percent. See
that is the better route — it eliminates
                                             C&DI 640.04. This makes sense, since
the additional step of clearing the post-
                                             Rule 457(o) looks to total deal size. To
effective amendment with the SEC
                                             use our example above, 20 percent of
Staff.10 Rule 462(b) is available if:
                                             the original maximum deal size equals
• You file the new registration              $23 million. Because 13 million shares
  statement prior to the time                are being offered at a new price per
  confirmations are sent, and                share of $12, total deal size would be
                                             $156 million, which is more than the
• The increase in price and share
                                             original deal size plus 20 percent ($115
  count together represent an increase
                                             million plus $23 million equals $138
  of no more than 20 percent of the
                                             million). As a result, you could not use
  previous maximum aggregate offering
                                             Rule 462(b) to register the additional
  price (as set forth in the fee table at
                                             deal size and would instead have to file
                                             a post-effective amendment.
There is a curious wrinkle to how
the 20 percent amount is calculated
for purposes of Rule 462(b), again
                                             Some Examples of How It
depending on whether you refiled your        All Fits Together
fee table under Rule 457(a) or stayed        Is your head spinning at this point? It
with Rule 457(o). If you are using Rule      should be. Let’s start with the following
457(a), you multiply the number of           basic facts and then try various upsizing
additional shares by the new offering        and downsizing scenarios to help
price and then look to see whether the       illustrate how the rules work:
increase in deal size associated with the
added shares is more or less than 20         • Maximum aggregate deal size in
percent of the deal size in the fee table      the fee table at effectiveness is $115

9   Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

• The price range prospectus reflects a      that the price is now $12 per share and
  range of $8-$10 per share, 10 million      the maximum deal size is $138 million
  firm commitment shares and 1.5             (post greenshoe). Ideally, the price
  million greenshoe shares, for a total      range prospectus already disclosed
  of 11.5 million shares (including the      what the proceeds would be used
  greenshoe)11                               for if the deal raised more cash than
• The minimum aggregate deal size            originally assumed, so there is no need
  in the price range prospectus is $92       to elaborate on that point.
  million (including the greenshoe),
                                             There would be no need to pay
  while the maximum aggregate deal
                                             additional fees via a Rule 462(b)
  size in the price range prospectus is
                                             registration statement if you calculated
  $115 million (including the greenshoe)
                                             your filing fee for purposes of the fee
  Scenario 1: At pricing, the price is       table using Rule 457(a), because the
  increased to $12 but the number of         number of shares to be sold has not
  shares stays the same, for a total         changed — this, as we pointed out
  aggregate deal size of $138 million        above, is the primary benefit of Rule
  (post greenshoe).                          457(a). If you calculated your filing
                                             fee using Rule 457(o), on the other
This is within Rule 430A’s safe harbor,
                                             hand, you would need to register the
because the increased price per share
                                             additional deal size, and this could be
(from $10 to $12) when multiplied
                                             done by filing a Rule 462(b) registration
by the number of shares (10 million
plus the 1.5 million greenshoe shares)
yields a maximum aggregate deal size           Scenario 2: At pricing, the price is
($138 million) that does not exceed            increased to $14 and the number
the maximum aggregate offering                 of shares is increased to 12 million
size reflected in the fee table plus 20        (pre greenshoe) and 13.8 million
percent ($115 million plus $23 million         (including the greenshoe), for a
equals $138 million). (You include the         total aggregate deal size of $193.20
greenshoe shares in these calculations,        million (post greenshoe).
because you need to have registered          This is outside the Rule 430A safe
and paid fees for all securities sold in     harbor, since the new total maximum
the offering.) You can ignore the price      aggregate deal size ($193.20 million)
range prospectus for the moment, since       is more than 20 percent above the
the instruction to Rule 430A(a) says you     maximum deal size reflected in the
look to the maximum deal size in the         fee table ($115 million plus $23 million
fee table to calculate the 20 percent        equals $138 million). That’s not the
amount for purposes of upsizing. The         end of the story, of course. Remember
fee table will always reflect a total deal   that C&DI 227.03 permits you to pour
size that is greater than or equal to the    this information back into the Section
deal size reflected in the price range       11 file at the time of effectiveness via
prospectus (at least if you used Rule        a Rule 424(b) prospectus even if your
457(o) to compute the fee table), so you     deal size changes by more than the
can see why the instruction is the way       20 percent safe harbor amount, if the
to go in an upsizing scenario — you get      increase in deal size does not materially
to calculate the 20 percent off a bigger     change the disclosure. You might be
base and hence get a larger increase.        able to conclude that the changes
Because you are within Rule 430A, the        were immaterial — for example, if the
new deal size and share price will be        sensitivity analysis in the price range
deemed to be part of the Section 11 file     prospectus gave investors enough
at the time the registration statement       information to track the changes through
became effective once the final              the disclosure — but in practice this
prospectus is filed under Rule 424(b).       may not matter since you may still need
The Section 12 file can be handled with      a post-effective amendment to register
an oral statement to accounts at the         the additional deal size (as we explain
time of confirming orders to the effect      below).

10 Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

Regardless of which approach is taken         range in the price range prospectus
— Rule 424(b) prospectus or post-             rather than the amount reflected in
effective amendment — the Section             the fee table. Following C&DI 627.01,
12 file will also need to be addressed.       you would calculate the 20 percent
This can be done either with an oral          threshold by using the high end of the
statement to accounts at the time of          range (20 percent of $115 million equals
confirming orders or by distributing a        $23 million) and then deducting that
Rule 433 free writing prospectus prior to     amount from the low end of the range
confirming orders to those expected to        ($92 million). This approach ($92 million
purchase shares. The decision whether         minus $23 million) lets you reduce the
to convey the new information orally or       deal to $69 million with the greenshoe,
in writing (via a free writing prospectus)    and gives you maximum flexibility.
will depend on the complexity of the          C&DI 627.01 is your best choice in
changes.                                      a downsizing scenario — you get to
                                              decrease deal size beyond the level that
Finally, don’t forget that you would need
                                              the instruction to Rule 430A(a) would
to register additional shares and pay
                                              otherwise allow. The decreased pricing
additional fees, whether you used Rule
                                              information can be included in a Rule
457(a) (since the number of shares being
                                              424(b) prospectus and will be deemed
registered has increased) or Rule 457(o)
                                              to be part of the Section 11 file at
(as a result of the increase in transaction
size). On our facts, if you refiled under
Rule 457(a) at the time of printing the       The Section 12 file issues may well
price range prospectus you would not          be more interesting in this example,
be able to register the additional shares     depending in part on whether the
via an immediately effective Rule             disclosure in the price range prospectus
462(b) registration statement, because        included sensitivity analysis explaining
the additional number of shares (2.3          what the issuer would do if the deal
million) multiplied by the new price          got downsized to such an extent. If it
per share ($14) equals $32.20 million,        did, an oral explanation of the smaller
which is more than 20 percent of the          deal size may be sufficient to provide
maximum offering price at effectiveness       investors with the missing information.
($23 million). Similarly, if you used Rule    If not, particularly if the use of proceeds
457(o) you would have to file a post-         will need to change, a free writing
effective amendment, since the increase       prospectus summarizing the changes
in total deal size (from $115 million         may be advisable.
to $193.20 million) is greater than 20
                                              Because there is no increase in
percent. In both cases, you would have
                                              aggregate deal size or number of shares
to wait for the SEC Staff to declare your
                                              being offered, there is no need to pay
post-effective amendment effective
                                              additional fees or file a Rule 462(b)
before any sales are confirmed.
                                              registration statement. In fact, the
  Scenario 3: At pricing, the price is        question whether additional filing fees
  decreased to $6 but the number of           are due never comes up in a downsizing
  shares stays the same, for a total          scenario.
  aggregate deal size of $69 million
                                                Scenario 4: At pricing, the price
  (post greenshoe).
                                                is decreased to $4 but the number
At first glance, this might appear to           of shares is increased, for a total
be outside the Rule 430A safe harbor            aggregate deal size of $69 million
since the new total maximum aggregate           (post greenshoe).
deal size ($69 million) is less than
                                              The answer to this scenario is the
the maximum deal size reflected in
                                              same as scenario 3, since both yield a
the fee table minus 20 percent ($115
                                              minimum deal size of $69 million. In
million minus $23 million equals $92
                                              other words, the aggregate size of the
million). But remember C&DI 627.01,
                                              deal did not decrease by more than
which allows you to focus on the price
                                              20 percent (calculated using the C&DI

11 Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

627.01 methodology) because of the              information — or even preparing the
increase in the number of shares to             information so that it can be conveyed
be sold. We believe that the SEC Staff          — may not be easy to do in a timely
would consider this scenario to be within       manner. As a result, the deal team will
Rule 430A, notwithstanding the steep            be under pressure to make important
decrease in the per share price (from $8        materiality judgments on a real-time
to $4).13                                       basis.

Some Additional Things to                       FINRA Issues
Bear in Mind                                    IPOs are subject to FINRA Rule 5110
                                                (sometimes referred to as the Corporate
                                                Financing Rule). The underwriters of
Negative Assurance Letter Practice              your IPO will be FINRA members, and
Negative assurance letter practice              the Corporate Financing Rule will limit
among law firms changed following the           the amount of compensation they (and
adoption of the Securities Act reforms in       other distribution participants for that
2005, particularly because of Rule 159’s        matter) may receive in connection with
focus on the information in investors’          the IPO. The Corporate Financing Rule
hands at the time of pricing. Negative          also prohibits certain practices that
assurance letters now cover three               FINRA has determined to be “unfair or
important items:                                unreasonable” and contains filing and
• The registration statement as of its          disclosure requirements.14
  effective date, as measured against           If the type of compensation going to
  the requirements of Section 11 of the         the underwriting group consists only
  Securities Act                                of the “spread” (i.e., the discount off
• The final prospectus, as of its date and      the public offering price), the upsizing
  as of the closing date, as measured           or downsizing of an IPO should not
  against the requirements of Section 12        trigger additional issues under Rule
  of the Securities Act, and                    5110. However, Rule 5110 includes
• The “Pricing Time Disclosure                  many other “items of value” received
  Package” as of the time the                   by the underwriters around the time of
  underwriters commence to confirm              the IPO in the calculation of aggregate
  orders, as measured against the               underwriting compensation. If aggregate
  requirements of Section 12 of the             underwriting compensation exceeds a
  Securities Act.                               certain percentage of the total offering
This last bullet point was added to             proceeds, the underwriters may need
address Rule 159. It requires the               to obtain the FINRA “no objections”
negative assurance provided by the              opinion required by the SEC in order
issuer’s and the underwriters’ law firms        for the registration statement to be
to speak to the collection of information       declared effective. A change in the size
conveyed to prospective purchasers              of your deal could potentially change
at the time the underwriters begin to           the total underwriting compensation as a
confirm orders. The magic of Rule 430A          percentage of deal proceeds in a manner
and its permission to go back in time to        that would require a visit to FINRA. In
rewrite history is critical for the negative    practice, that may be difficult to achieve
assurance given in the first bullet point       under the timing pressure that always
above, which relates to the Section 11          exists at the moment of truth.
file, but it is of no use for purposes of the   FINRA Rule 2720 contains additional
third bullet point, which relates to the        requirements that apply to public
Section 12 file.                                offerings in which a participating FINRA
The way to satisfy Rule 159 is to actually      member is deemed to have a “conflict of
convey information to accounts. In the          interest” (i.e., an interest in the outcome
context of a deal that is being upsized or      of the offering beyond its role as an
downsized at the last minute, conveying         underwriter or selling group member).

12 Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

The rule provides that a conflict of          • Is there sufficient excess demand that
interest exists whenever five percent or        we can increase the price to a price
more of the net offering proceeds will          that is above the top end of the range?
be directed to a FINRA member or its          • Can we increase the price above the
affiliates or other “related persons.”          range and increase the number of
Accordingly, if an offering is downsized,       shares being offered?
you will need to re-assess whether the        • If the deal size increases, what will
conflict of interest provisions of Rule         the extra proceeds be used for?
2720 are triggered. Among other things,       • What did we say in the price range
Rule 2720 will generally require the            prospectus sent to investors about
participation of a FINRA-approved               what would happen to our use of
“qualified independent underwriter”             proceeds if the deal were to be
and inclusion of prominent disclosure           upsized or downsized?
as to the nature of the conflict in the
                                              It is important to get this dialogue going
                                              long before it is time to price the deal
                                              so the deal team can plan for every
NYSE/Nasdaq Issues                            possible outcome. Bear in mind that:
Both the NYSE and the Nasdaq’s listing
                                              • A free writing prospectus reflecting
rules exempt “controlled companies”
                                                new disclosures may need to be
— that is, companies of which more
                                                drafted and circulated to prospective
than 50 percent of the voting power
                                                investors expected to purchase stock
is held by an individual, a group or
                                                in the offering before orders can be
another company — from certain listing
                                                confirmed, or a telephone script for
requirements relating to corporate
                                                the conversation with those investors
governance. For example, controlled
                                                may need to be prepared
companies are exempt from the
                                              • A final prospectus containing
requirement to have a board composed
                                                appropriate disclosure must in any
of a majority of independent directors.
                                                event be drafted and filed under Rule
When you are doing an IPO for a
controlled company, you should keep an
                                              • The accountants’ comfort letters may
eye out for the potential effect of selling
                                                need to change to reflect the revised
more shares on the controlled company
analysis — if your deal is upsized at the
                                              • A Rule 462(b) registration statement
moment of truth, it’s possible that the
                                                to register additional shares or
company will not longer be “controlled”
                                                transaction size may need to be
for purposes of this exemption.
                                                prepared, and extra filing fees may
                                                need to be paid
Tying It All Together                         • A Rule 462(d) post-effective
                                                amendment to add a new Exhibit 5.1
So how does all of this fit together, you
                                                opinion covering additional shares
ask? Simple, really. The underwriters
                                                may need to be drafted and filed
and the issuer should start the dialogue
                                              • If there are other changes that do not
about how the market is reacting to the
                                                qualify as pricing information within
deal while the road show is progressing.
                                                the meaning of Rule 430A or if Rule
These are the types of questions that
                                                430A’s 20 percent safe harbor is not
may come up:
                                                available, a post-effective amendment
• Is there sufficient demand for the            to the registration statement may
  stock within the suggested range?             need to be prepared and filed,
• If not, is it possible to get a smaller       and the SEC Staff must declare it
  deal done within the range or may we          effective, and
  need to reduce the deal’s size and the      • In the most extreme cases, an entirely
  per share price?                              new price range prospectus must
• If the size of the deal decreases, will       be drafted and recirculated to all
  the use of proceeds need to change?           investors expecting to purchase stock
                                                in the offering.

13 Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

All these steps take time. There is no                         2:00	p.m.	Eastern	time	is	often	chosen.	
substitute for advance planning, which                         Because	the	market	has	not	yet	closed,	you	
comes in two phases — before and                               would	typically	not	be	in	a	position	to	know	with	
                                                               certainty	that	you	will	be	pricing	outside	the	
during/after the road show. Before the
                                                               range	set	forth	in	the	prospectus	at	that	time.
road show, it is very handy if the price
range prospectus is drafted to include
                                                              	 The	time	of	“effectiveness”	is	a	key	moment	
                                                                in	the	IPO.	Among	other	things,	securities	
appropriate sensitivity analysis along the
                                                                cannot	be	sold	until	the	registration	statement	
lines discussed above. Good advance
                                                                is	declared	effective.	Rule	430A	allows	an	IPO	
planning and carefully crafted disclosure                       to	price	as	many	as	15	business	days	after	
in the price range prospectus may make                          effectiveness,	but	it	is	most	common	to	price	on	
it possible to conclude that a change                           the	day	of	effectiveness	(which	is	also	the	time	
in deal size is not a material change                           the	underwriters	will	begin	confirming	orders).	
in the disclosure, taken as a whole.                            The	actual	closing	of	the	transaction	happens	
During and after the road show, as soon                         some	number	of	days	later.
as it becomes clear that an upsizing or                   3
                                                              	 Rule	430A	defines	pricing	information	as:	
downsizing is even a possibility, the                           	 information	with	respect	to	the	public	offering	
deal team should be reviewing the                                 price,	underwriting	syndicate	(including	any	
options under the rules described above                           material	relationships	between	the	registrant	
and preparing revised disclosure, free                            and	underwriters	not	named	therein),	
writing prospectuses, telephone scripts,                          underwriting	discounts	or	commissions,	
etc., as needed.                                                  discounts	or	commissions	to	dealers,	amount	
                                                                  of	proceeds,	conversion	rates,	call	prices	and	
Timing is critical and there is little                            other	items	dependent	upon	the	offering	price,	
margin for error. Be prepared!                                    delivery	dates,	and	terms	of	the	securities	
                                                                  dependent	upon	the	offering	date[.]
Summary                                                   4
                                                              	 We’re	assuming	that	the	prospectus	at	
                                                                effectiveness	is	the	same	price	range	prospectus	
This is tricky stuff. However, with                             circulated	to	investors	—	in	other	words,	that	you	
appropriate advance planning and                                have	not	refiled	with	a	different	range.
carefully crafted disclosure in the                       5
                                                              	 Note,	however,	that	one	consequence	might	be	
price range prospectus, it is possible                          a	material	change	to	the	ownership	structure,	
to navigate the many technical                                  for	example	if	the	change	resulted	in	a	control	
requirements and focus on the judgment                          group’s	retention	(or	loss)	of	control	over	the	
calls. What is a material change to the                         company.
disclosure depends in part on what was                    6
                                                              	 In	other	words,	if	prospective	investors	actually	
disclosed in the first instance, so the                         have	the	revised	preliminary	prospectus	in	their	
advance planning really begins at the                           hands	at	9:00	a.m.	on	Monday	morning,	it	would	
first drafting session. Those who are                           be	appropriate	to	price	on	Tuesday	after	the	
thinking ahead to pricing from the very                         market	closes.
beginning will have an easier time when                   7
                                                              	 One	wrinkle	in	Rule	433	that	could	be	construed	
they get there, even if the deal changes                        to	require	a	full	recirculation	in	a	very	limited	
materially at the moment of truth.                              circumstance	deserves	discussion.		
                                                                Rule	433(b)(2)(i)	requires	that	an	IPO	issuer’s	
Endnotes                                                        free	writing	prospectus	be:
  	 Remember,	though,	that	there	are	situations	in	
                                                                	 accompanied	or	preceded	by	the	most	recent	
    which	you	may	conclude	that	filing	a	pre-effective	
                                                                  .	.	.	[preliminary]	prospectus	[on	file	with	the	
    amendment	is	unavoidable.	One	example	would	
                                                                  SEC];	provided, however,	that	use	of	the	
    be	where	you	are	certain	before	effectiveness	
                                                                  free	writing	prospectus	is	not	conditioned	on	
    that	your	deal	is	going	to	be	dramatically	
                                                                  providing	the	most	recent	such	prospectus	if	
    downsized	or	upsized:	failing	to	refile	exposes	
                                                                  a	prior	such	prospectus	has	been	provided	
    you	to	the	risk	of	tripping	over	Regulation	S-K	
                                                                  and	there	is	no	material	change	from	the	
    Item	501(b)(3),	which	requires	an	IPO	issuer		
                                                                  prior	prospectus	reflected	in	the	most	recent	
    to	include	a	“bona	fide	estimate”	of	the	price		
    range	in	the	preliminary	prospectus	it	circulates	
    to	potential	investors.	In	the	ordinary	course,		     	 This	proviso	is	puzzling,	since	in	most	cases	
    you	would	seek	to	go	effective	at	some	point	           there	would	not	be	a	reason	to	circulate	a	
    prior	to	the	close	of	the	stock	market	—		              free	writing	prospectus	if	there	were	nothing	

14 Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

     material	to	report.	We	choose,	therefore,	to	            9
                                                                  	 Whichever	route	is	chosen,	you	will	also	need	to	
     interpret	the	proviso	as	meaning	that	a	free	                  remember	to	include	a	new	Exhibit	5.1	opinion	
     writing	prospectus	for	an	IPO	issuer	is	only	                  on	the	legality	of	the	additional	securities	being	
     allowed	to	convey	material	changes	if	the	free	                registered.	This	can	be	done	by	means	of	an	
     writing	prospectus	and the original preliminary                immediately	effective	post-effective	amendment	
     prospectus	(and	each	other	broadly	distributed	                under	Rule	462(d).
     free	writing	prospectuses,	if	any),	taken together,	     10
                                                                   	Note,	by	the	way,	that	Rule	462(b)	works	for	
     contain	materially	the	same	information	as	                    an	increase	in	transaction	size	in	a	Rule	457(o)	
     is	at	the	time	on	file	with	the	SEC.	We	think	                 deal,	even	though	the	text	of	Rule	462(b)	speaks	
     that	this	interpretation	is	more	in	keeping	with	              only	of	“registering	additional	securities.”	See	
     the	overall	purpose	of	Rule	433	—	namely,	to	                  C&DI	640.04.
     encourage	sending	information	to	accounts	on	            11
                                                                   	The	“greenshoe”	is	jargon	for	the	underwriters’	
     an	as-needed,	real-time	basis.
                                                                    over-allotment	option	—	that	is,	the	contractual	
	 In	any	event,	however,	note	1	to	paragraph	                       right	to	purchase	some	number	of	additional	
  (b)(2)(i)	of	Rule	433	makes	clear	that	this	                      shares	from	the	issuer	after	the	closing	of	the	
  technical	issue	is	not	a	problem	for	a	free	                      offering.	“It	is	so	named	because	it	was	first	
  writing	prospectus	delivered	by	e-mail	as	long	                   used	in	connection	with	a	1963	secondary	
  as	it	includes	a	hyperlink	to	the	most	recent	                    offering	of	shares	of	common	stock	of	The	
  preliminary	prospectus	on	file	with	the	SEC.	As	                  Green	Shoe	Manufacturing	Company,	the	
  a	result	of	this	helpful	note,	every	free	writing	                Boston-based	manufacturer	of	Stride-Rite	shoes	
  prospectus	to	be	sent	by	e-mail	in	connection	                    (not	green	shoes	for	leprechauns	as	some	
  with	an	IPO	should	include	such	a	hyperlink.	                     have	supposed).”	Charles	J.	Johnson,	Jr.	and	
  In	situations	where	the	underwriters	are	able	                    Joseph	McLaughlin,	Corporate Finance and the
  to	distribute	free	writing	prospectuses	to	all	                   Securities Laws	at	2-38	(4th	ed.	2009).
  accounts	by	e-mail,	there	is	no	need	to	struggle	           12
                                                                   	When	calculating	the	increase	in	deal	size	for	
  with	the	interpretive	issue	discussed	in	the	prior	
                                                                    Rule	462(b)	purposes,	do	not	overlook	the	
                                                                    underwriters’	overallotment	option	–	you	will	
    	 There	is	a	technical	reason	why	it	is	generally	              need	to	register	a	sufficient	number	of	shares	
      preferable	to	chose	Rule	457(o)	at	the	outset.	               (and	pay	enough	fees)	to	cover	both	the	primary	
      The	SEC	Staff	informally	takes	the	position	that	             as	well	as	any	option	shares	to	be	sold	in	the	
      if	you	raise	your	price	range	in	a	preliminary	               IPO.
      prospectus	contained	in	a	pre-effective	                13
                                                                   	Having	said	that,	you	would	need	to	be	
      amendment	from	the	range	used	to	calculate	
                                                                    comfortable	that	the	price	range	in	the	price	
      the	filing	fee	and you originally elected to
                                                                    range	prospectus	circulated	to	investors	(and	
      proceed under Rule 457(a),	then	the	20	percent	
                                                                    included	in	the	registration	statement	at	the	time	
      safe	harbor	contemplated	by	the	instruction	to	
                                                                    of	effectiveness)	was	in	fact	a	“bona	fide”	price	
      paragraph	(a)	of	Rule	430A	is	calculated	on	the	
                                                                    range	as	required	by	Regulation	S-K	Item		
      basis	of	the	original	maximum	aggregate	offering	
      price	and	not	the	offering	price	range	contained	
      in	the	price	range	prospectus	distributed	to	
                                                                   	Among	other	things,	the	Corporate	Finance	Rule	
      investors.	This	qualification	can	be	eliminated	if	           limits	the	greenshoe	to	15	percent	of	the	amount	
      you	“voluntarily”	pay	an	additional	filing	fee	when	          of	securities	being	offered	in	the	IPO	(excluding	
      you	increase	your	offering	range,	but	doing	so	               the	greenshoe).	See	FINRA	Rule	5110(f)(2)(J).
      defeats	the	primary	benefit	of	Rule	457(a)	(i.e.,	
      you	do	not	need	to	go	back	to	the	SEC	if	you	
      increase	your	estimated	price	per	share).	This	
      SEC	Staff	position	can	be	a	trap	for	the	unwary	
      issuer	who	elected	to	use	Rule	457(a)	originally	
      to	calculate	the	filing	fee	and	later	seeks	to	
      upsize.	There	is	no	such	hidden	problem	for	
      users	of	Rule	457(o),	as	they	are	required	to	pay	
      additional	filing	fees	at	the	time	they	upsize	their	
      deal,	and	they	know	it.

15 Number 1053 | July 14, 2010
Latham & Watkins | Client Alert

If you have any questions about this
Client Alert, please contact one of the
authors listed below or the Latham
attorney with whom you normally

Brian G. Cartwright                                     Kirk A. Davenport
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Washington, D.C.                                        New York
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16 Number 1053 | July 14, 2010

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