Update to Corp Fin Policy re Confidential Submissions by Foreign Private Issuers

By Cydney Posner

The staff of Corp Fin has updated its policy regarding confidential submissions by foreign private issuers.  You'll recall that, although historically, most foreign private issuers were allowed to file IPO registration statements with the SEC on a confidential basis, late last year, the SEC significantly narrowed the group of foreign private issuers eligible to file confidentially. (See my article of 12/9/11.) Under the amended policy, only the following foreign private issuers are eligible to file confidentially: (1) a foreign government registering its debt securities; (2) a foreign private issuer that is listed or is concurrently listing its securities on a non-U.S. securities exchange; (3) a foreign private issuer that is being privatized by a foreign government; or (4) a foreign private issuer that can demonstrate that the public filing of an initial registration statement would conflict with the law of an applicable foreign jurisdiction. In addition, shell companies, blank check companies and issuers with no or substantially no business operations are not permitted to use the non-public submission procedure.

But then the JOBS Act intervened to extend the confidential IPO filing process to emerging growth companies, and the SEC developed a specific process for those submissions. Foreign private issuers that are EGCs must follow the procedures for confidential submissions applicable to domestic EGCs. Now, under the SEC's updated policy, foreign private issuers that are eligible to file confidentially even if they are not EGCs will need to follow the procedures for EGCs. For example, they will be required, at the time they publicly file their registration statements, to also publicly file their previously submitted draft registration statements and resubmit all previously submitted response letters to staff comments as correspondence on EDGAR. All staff comment letters and issuer response letters will be posted on EDGAR in accordance with staff policy. The policy also notes that, in some circumstances, such as publicity about a proposed offering or listing, the staff may request a foreign private issuer to publicly file its registration statement even though it comes within the general parameters of the policy. (Presumably, the same caution would apply to domestic EGCs.) For foreign private issuers making non-public submissions pursuant to this policy, and not pursuant to the procedures available to EGCs, this requirement to follow the EGC procedures will apply only to those registration statements where the initial draft submission is made after May 30, 2012.

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