Thursday, May 31, 2012

SEC Staff Advise Foreign Private Issuers on Confluence of Non-Public Submission Policy and JOBS Act Emerging Growth Companies

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.