The Division of Corporation
Finance has reminded that foreign private issuers submitting draft registration
statements pursuant to the foreign issuer non-public submission policy or as an
emerging growth company under the JOBS Act are 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. For foreign private issuers making non-public
submissions pursuant to this policy, and not pursuant to the procedures
available to emerging growth companies, this requirement will only apply to
registration statements where the initial draft submission is made after May
30, 2012.
Recognizing that foreign
private issuers face unique circumstances when accessing U.S. public markets in
connection with the initial registration of their securities, the Division has
afforded foreign private issuers the ability to submit to the staff registration
statements and amendments on a non-public basis in connection with their
first-time registration, 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.
In December 2011, the
Division limited its policy with respect to the non-public submission of
initial registration statements by foreign issuers. Since then, the staff
reviews initial registration statements of foreign issuers that are submitted
on a non-public basis only where the registrant is: (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.
This non-public submission
policy is separate from the confidential registration statement review
procedures available to emerging growth companies under the Jumpstart Our
Business Startups Act. Foreign private issuers that meet the requirements in
the JOBS Act are eligible to be treated as emerging growth companies.
Foreign issuers that are
eligible under the non-public submissions policy must submit their draft
registration statements in the same manner as emerging growth companies under
the JOBS Act. Foreign private issuers who seek to qualify as emerging growth
companies under the JOBS Act should consult the Division’s information relating
to Title I of the JOBS Act.
The staff noted that
foreign private issuers seeking to be treated as emerging growth companies
must, among other things, follow the procedures applicable to emerging growth
companies with respect to both confidential submissions and the timing of the
public filing of their registration statements.