September 18, 2013
To file “confidentially,” Twitter utilized a relatively new S.E.C. rule. Last year, the JOBS Act (PL 112-106) created a rule allowing for companies with less than $1 billion in annual revenue to submit IPO filings confidentially.
The rule added section (e) to 15 U.S.C.A. § 77f:
“…Any emerging growth company, prior to its initial public offering date, may confidentially submit to the Commission a draft registration statement, for confidential nonpublic review by the staff of the Commission prior to public filing, provided that the initial confidential submission and all amendments thereto shall be publicly filed with the Commission not later than 21 days before the date on which the issuer conducts a road show, as such term is defined in section 230.433(h)(4) of title 17, Code of Federal Regulations, or any successor thereto.”
Using a words and phrases search in statutes (wp(“emerging growth company”)), I found the phrase defined at 15 U.S.C.A. § 78c. There you’ll find the reference to “less than $1,000,000,000” in subsection (a)(80).
“The term “emerging growth company” means an issuer that had total annual gross revenues of less than $1,000,000,000 (as such amount is indexed for inflation every 5 years by the Commission to reflect the change in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics, setting the threshold to the nearest 1,000,000) during its most recently completed fiscal year.”
There are plenty of good overviews about the rule. Try the following search in Securities Secondary Source materials:
JOBS Act emerging growth company confidential initial public offering
JOBS Act – Modifications to Pre- And Post-IPO Process for “Emerging Growth Companies,” 32 Rev. Banking & Fin. L. 50 (2012)
Guidance and Comments Inform JOBS Act Implementation, CCH Federal Securities Law Reporter, 2012 WL 3154437 (2012)
Staff Issues Guidance on Title I of the JOBS Act, SEC Today, 2012 WL 5304219 (2012)