In order to promote transparency and investor protection, the SEC Division of Corporation Finance will limit its traditional policy with respect to the confidential non-public submission of initial registration statements by foreign private issuers. Beginning immediately, the staff will review initial registration statements of foreign issuers that are submitted on a non-public basis only where the registrant is a foreign government registering its debt securities; a foreign private issuer listed on a non-U.S. exchange; a foreign private issuer that is being privatized by a foreign government; or 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 will not be permitted to use the non-public submission procedure.
Non-public submissions that do not come within one of the above categories and that were received by the staff before December 8, 2011 will continue to be reviewed by the staff without a public filing. But the next draft of the registration statement, whether in response to comments issued by the staff or otherwise, must be filed on the EDGAR system.
Foreign private issuers were also cautioned that circumstances may develop in which the staff will request them to publicly file a registration statement even though they comes within the general parameters of the new policy. Examples of these circumstances include a competing bid in an acquisition transaction or publicity about a proposed offering or listing.
Foreign issuers are also reminded that the non-public submission of a registration statement does not constitute the filing of a registration statement under the Securities Act.. Under Section 5(c) of the Securities Act, offers of securities cannot be made in the United States until a registration statement is publicly filed with the Commission using the EDGAR system.
The Division has historically permitted foreign private issuers to submit to the staff registration statements and amendments on a non-public basis in connection with their first-time registration with the Commission, permitting the staff to review and comment on disclosure, and the issuer to respond to staff comments, before a public filing is made through the EDGAR system. The policy was partially based on the fact that historically the majority of foreign private issuers registering securities with the SEC were also having their securities traded on a foreign securities exchange, and the foreign market ordinarily did not have a practice of requiring public disclosure of the registration statement before completion of review.
More recently, however, the vast majority of foreign private issuers using this non-public review procedure did not and were not contemplating listing securities outside the United States. Thus, the Division believes it is appropriate to limit its policy with respect to the non-public submission of initial registration statements by foreign private issuers.