Born-Again EGCs

Many practitioners have found that the most challenging questions about EGC status arise in connection with previously public entities that have undergone some organic change on or prior to December 8, 2011, such as a merger or a going-private transaction.  There is no real guidance in the JOBS Act to answer some of these difficult questions, however in the SEC Staff's FAQs on Title I of the JOBS Act, they indicated that if an issuer completes a transaction that results in the issuer becoming the successor to its predecessor's Exchange Act registration and reporting obligations pursuant to Exchange Act Rules 12g-3 and 15d-5, and the predecessor was not eligible to be an EGC because its first sale of common equity securities pursuant to an effective registration statement occurred on or before December 8, 2011, then the successor cannot now qualify as an EGC.  We understand that the SEC Staff intends to publish a new set of FAQs to further address successor issuer/EGC