Since the enactment of the Jumpstart Our Business Startups Act, the Division of Corporate Finance of the SEC has issued three sets of Frequently Asked Questions related to the JOBS Act, addressing general questions related to emerging growth company ("EGC") status and the IPO on-ramp, scaled disclosure and other provisions of the JOBS Act benefiting EGCs; confidential staff review of registration statements pursuant to new Section 6(e) of the Securities Act of 1933; and changes to requirements for registration and deregistration under the Securities Exchange Act of 1934. The following is an overview of the key guidance provided in the FAQ releases. Our prior Practice Update discussed the significant aspects of the JOBS Act.

Determination of Emerging Growth Company Status

The JOBS Act provides that an issuer may not qualify as an EGC if its first sale of common equity securities pursuant to an effective registration statement occurred on or before December 8, 2011. The limitation may arise not only from a filing related to a primary initial public offering but also from a resale registration statement or an employee benefit plan registration on Form S-8. However, if no sales occurred on or prior to the cutoff date, an issuer can qualify even if a registration was then effective. The determination of whether an issuer's gross revenues were less than $1 billion during its most recently completed fiscal year will be made under U.S. GAAP (or IFRS as issued by the IASB, if adopted by a foreign private issuer).