Confidential Submission of Draft SEC Registration Statements
Confidential Submission of Draft SEC Registration Statements l Ask Securities Lawyer 101
Ask Securities Lawyer 101 l Confidential Submission Registration Statement
The Jumpstart Our Business Startups Act (the “JOBS Act”) allows an “emerging growth company” to submit a draft of its registration statement and exhibits to the Securities and Exchange Commission (the “SEC”) on a confidential basis. This blog posts addresses the common questions we receive about the confidential submission process.
Q. When does an emerging growth company have to file its registration statement if I want it to be a confidential submission?
A. The JOBS Act requires that emerging growth companies file the initial confidential submission and all amendments with the SEC within 21 days prior to the anticipated effectiveness of the registration statement or road shows. These prior confidential submissions should be included as exhibits to the company’s later publicly filed registration statement, if any.
Q. How long will my company’s registration statement remain confidential?
A. Registration statements submitted to the SEC on a confidential basis do not remain confidential if a company goes forward with its Initial Public Offering (“IPO”) or pre-IPO offering.
Q. Will SEC comment letters to my company’s registration statement and company responses remain confidential?
A. The registration statement comments and responses will become publicly available after the completion of the securities offering but not earlier than 20 business days following the effective date of the registration statement.
Q. What are the benefits of confidential submission of a registration statement to the SEC?
A. The confidential submission of a registration statement allows a company to keep the registration statement confidential and out of the public domain until it decides whether it will proceed with its public offering. If a company abandons its offering before its registration statement becomes effective, its submission remains confidential.
Q. If I submit my company’s registration statement on a confidential basis can the company still announce its registration statement or IPO?
A. SEC Rule 135 allows an issuer to announce limited information about the confidential submission of a registered securities offering submitted to the SEC.
Q. Does anything contained within a confidentially submitted registration statement remain confidential?
A. Limited information from the confidential submission of a registration statement can remain confidential. Rule 406 allows a company to keep portions of its registration statement confidential. Rule 406 requires the issuer to state the specific reasons why a confidential request is made and provide a detailed explanation of why, based on the related facts and circumstances, disclosure of the information is unnecessary to protect investors. The most common request for confidential submission of certain information in a registration statement is made for trade secrets, proprietary information, confidential commercial or financial information that would cause substantial competitive harm to the issuer if disclosed.
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Hamilton & Associates | Securities Lawyers Brenda Hamilton, Securities Attorney 101 Plaza Real South, Suite 201 South Boca Raton, Florida 33432 Telephone: (561) 416-8956 Facsimile: (561) 416-2855 www.SecuritiesLawyer101.com