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t the Organizational Meeting for the initial public offering of Hi Tech, Inc., the
CEO announces that she gave an interview to a major mass circulation
magazine a week earlier. The interview topics included the following four
statements:
Statement 1: "The company’s financial performance for the most
recent year."
Statement 2: "The CEO’s expectations for the company’s financial
performance for the current year."
Statement 3: "The terms on which the company most recently
raised capital in a private placement."
Statement 4: "The possibility that the company might go public at
some point in the near future."
The timing of the publication of the interview is uncertain. The company and
the prospective underwriters would like to file a registration statement 6
weeks following the date of the Organizational Meeting.
1.
Are any of Statements 1-4 above problematic for the offering? If so,
why?
2.
For any of the Statements that you find problematic, please discuss:
o
The possible adverse consequences, AND
o
How the problem can be resolved
There may arise problems with the offering if any of the statements are not
true or are misleading when the registration statement is submitted. For
example, Statement 1 explains financial performance and if the data is
untrue, potential investors might be mislead about the company’s
performance and make bad investment decisions based off of Statement 1.
The CEO can be charged with misrepresenting the company’s prospectus if
Statement 2 is untrue, hurting the company’s reputation and make it more
challenging to raise funds in the future. If Statement 3 is false, the company
can actually have face charges of misrepresentation of the conditions of the
private placement. This could mean either legal or regulatory consequences.
If Statement 4 is untrue, the company could be charged with deceiving
investors about its IPO plans, resulting in the possibility of further regulatory
action or legal consequences.
The first method that can be used to make sure the problems can be
resolved would be to make sure that the statements are true when the
registration statement is filed. Adding disclaimers to the statements is
another method in addressing these concerns. Like adding a disclaimer than
says that if company’s outcomes are different, it could be due to a number of
different variables.
Another method could be attempting to delay to submission of the
registration statement until after the interview has been published. Any
truths can then be confirmed and more information can be made available to
potential investors. In the end, the corporation should compare its
statements to public records and its own internal records to make sure there
are no errors and correct them before the registration statement is filed.
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