Confidential Submission of Registration Statements In Going Public Transactions
The Jumpstart Our Business Startups Act (the “JOBS Act”) allows an “emerging growth company” to submit a draft of its Form S-1 registration statement and exhibits to the Securities and Exchange Commission (the “SEC”) on a confidential basis. This allows private companies in going public transaction to ease into public company status. This blog post addresses the common questions we receive about emerging growth companies during the going public 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 who want to file a confidential submission of their registration statement do so within 21 days prior to the registration statement’s anticipated effectiveness.
Q. How long will my company’s registration statement remain confidential?
A. Registration statements on Form S-1 submitted on a confidential basis do not remain confidential if a company completes its Direct Public Offering, Initial Public Offering (“IPO”) or pre-IPO offering.
Q. Will SEC comment letters to a registration statement and company responses to the registration statement remain confidential?
A. Form S-1 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 Form S-1 registration statements is made for trade secrets, proprietary information, confidential commercial or financial information that would cause substantial competitive harm to the issuer if disclosed.
This informational memorandum about the confidential submission of draft registration statements under the JOBS Act is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. For more information concerning the rules and regulations affecting the use of Rule 144, Form 8K, FINRA Rule 6490, Rule 506 private placement offerings, Regulation A, Rule 504 offerings, SEC reporting requirements, SEC registration on Form S-1 and Form 10, Pink Sheet listing, OTCBB and OTCMarkets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, go public direct transactions and direct public offerings please contact Hamilton and Associates at (561) 416-8956 or firstname.lastname@example.org. Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers Brenda Hamilton, Securities Attorney 101 Plaza Real South, Suite 202 N Boca Raton, Florida 33432 Telephone: (561) 416-8956 Facsimile: (561) 416-2855 www.SecuritiesLawyer101.com