During an initial public offering (IPO), the issuer and underwriter must follow strict guidelines and rules. These regulations come from the Securities Act of 1933, which oversees the primary market.
The financial markets were full of fraud, deceit, and manipulation in the early 1900s, some of which contributed to the Great Depression. Signed into law to protect the investing public, the Securities Act of 1933 requires issuers to fully divulge the characteristics of the securities they intend to sell. The rules in this law are extensive and require attention to detail. To ensure compliance with the law, issuers hire lawyers, accountants, and even obtain help from their underwriter.
As we discussed previously, issuers hire underwriters to sell their securities to investors. The issuer and underwriter sign a contract that details the fees to be paid by the issuer, the liabilities (commitments), and generally how the sale will unfold.
After the contract is signed, the underwriter guides the issuer through the ‘due diligence’ phase. The Securities Act of 1933 requires the issuer to disclose a significant amount of information to the public. They fill out and file the SEC’s registration form, which requests items such as business history, information on officers and directors, and current financial status. Specific items details in the registration form include:
The filing of the registration form kicks off the 20-day “cooling off” period. During this time, the SEC reviews and confirms the completeness of the form. This takes some time, which is why the period lasts 20 days.
The SEC must ensure the public has access to all of the issuer’s required disclosures before any sales activity occurs. Therefore, the underwriter or any other financial firm connected to the IPO cannot advertise or recommend the new issue to any investor. Additionally, they cannot sell the new issue or take deposits for future sales. Anything sales related is off-limits during this 20-day period.
Some activities may occur during the cooling-off period. The information filled out in the SEC’s registration form is compiled into a document called the prospectus. Investors learn about the issuer and the security by reading the prospectus. During the 20-day cooling off period, the SEC registration form is transformed into a “preliminary” prospectus, which can be given to potential investors on a solicited or unsolicited basis.
Sometimes referred to as the “red herring,” this form is considered preliminary until the SEC officially registers the security. The term ‘red herring’ comes from a message written in red on the preliminary prospectus:
A Registration Statement relating to these securities has been filed with the Securities and Exchange Commission but has not yet become effective. Information contained herein is subject to completion or amendment. These securities may not be sold nor may offers to buy be accepted prior to the time the Registration Statement becomes effective.
In plain English, the information in the preliminary prospectus hasn’t been properly reviewed for completeness and may change. However, the SEC does not check the registration form for accuracy, nor do they guarantee anything about the new issue. If the issuer misleads or lies on the registration form, they’ll be subject to significant fines and sanctions. Jail time is also possible for anyone who lied while filling out the form.
The SEC’s job is to determine if the registration form is complete. If something is missing, they’ll send a deficiency letter to the issuer and notify them of the missing pieces. Unfortunately for the issuer and underwriter, this pauses the registration process until the lacking information is submitted. It will take time to properly finish the registration form and re-file it with the SEC.
Part of the underwriter’s job is to price the new security. This is especially tough with stock, given its market value is based on demand. To estimate demand for the IPO, the underwriter may solicit or receive indications of interest from potential investors during the 20-day cooling-off period.
Indications are just indications, and are not binding on any party. If a customer indicates they’re interested in buying the issue, they have no obligation to do so. If the underwriter takes an indication of interest from a potential investor, they have no obligation to sell them the issue.
In order to notify the public of the new issue, a tombstone may be published. The term ‘tombstone’ refers to what they look like (kind of like a tombstone).
Tombstones are typically published in newspapers and online outlets. They are the only form of legal advertising the SEC allows during the cooling-off period. The tombstone contains factual pieces of information that don’t “pump up” or recommend the issue in any way.
Typical tombstone information
To summarize, here’s what can and cannot be done during the 20-day cooling-off period.
Legal during the 20-day cooling off period
Illegal during the 20-day cooling off period
After a completed registration form is reviewed by the SEC, they will effectively register the security. At some point during the cooling-off period, an effective date is announced. The effective date is the first day the security may be legally sold to the public.
When a new issue’s registration is effective, the underwriter reaches out to customers who submitted indications of interest. If demand is high for the issue, they must be selective when determining which investors get shares. There aren’t many guidelines here, so underwriters typically sell shares to their most profitable customers.
New issues are sold at the public offering price (POP). You probably remember this term from the investment companies chapter. Similar to an investor buying a mutual fund, IPOs are purchased at the POP.
The Securities Act of 1933 requires the underwriting syndicate to deliver a prospectus to each investor buying the IPO. The following pieces of information are found in an issuer’s prospectus:
*In every prospectus, you’ll find language like this:
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
There’s one key thing to know - registration of a security is not equivalent to SEC approval. Securities regulators don’t want to portray a view of approval or disapproval, as they know securities are not suitable for every investor. Instead, the SEC deems registration effective if all necessary disclosures have been made.
Here’s a real-world example of Airbnb’s prospectus offered to investors during their late 2020 IPO. Don’t worry too much about the specifics - it’s a 350-page document! All you need to know are the generalities of a prospectus and the big topics it covers.
The prospectus must be delivered to investors in its original, unaltered form. Firms cannot highlight, summarize, or modify a prospectus in any way. Prospectus delivery not only applies to the syndicate selling the new issue, but also to any financial firm selling the new shares in the secondary market for a short amount of time after the IPO is finished. A prospectus must be delivered by financial firms (like securities dealers and broker-dealers) for these time frames after the IPO is closed:
| Type of offering | Prospectus timeframe |
|---|---|
| Listed IPO | 25 days |
| Unlisted APO | 40 days |
| Unlisted IPO | 90 days |
| Listed APO | No requirement |
Listed securities are eligible to be traded on exchanges (e.g. the NYSE, while unlisted securities only trade in the OTC markets. We’ll learn more about listed and unlisted securities in the following unit.
After the issue is sold in the primary market, investors trade it in the secondary market. Some IPO customers will be long-term investors, while others may make a quick profit by selling their shares swiftly. The following unit will provide more details on the structure and rules of the secondary market.
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