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Dodd-Frank

SEC Issues Additional Guidance on Voluntary Confidential Submissions for All Issuers

by   |   July 3, 2017

As previously reported here, on June 29, 2017, the Division of Corporation Finance announced that it would accept draft registration statements from all issuers for nonpublic review. The Division’s initial announcement noted that the newly available nonpublic review for issuers outside of Emerging Growth Companies (EGCs) and foreign private issuers would be limited to the initial submission and indicated that responses to staff comments on draft registration statements needed to be made in in a public filing, not with a revised draft registration statement. The Division has since released additional guidance in Q&A form addressing the new process for making confidential submissions. The FAQs include the following additional highlights:

  • Issuers should request confidential treatment under Rule 83 (17 CFR 200.83) for its draft registration statement and associated correspondence when seeking a nonpublic review.
    • Issuers should submit their Rule 83 requests electronically (using submission type DRSLTR) not separately to the Division or the SEC’s FOIA office.
    • Issuers should include a legend at the top of each page of the electronically submitted draft registration statement indicating a request for confidential treatment pursuant to Rule 83.
  • Issuers should submit a cover letter conveying agreement with the public filing guidelines in the Division’s June 29, 2017 announcement.
  • Issuers conducting an IPO (or an initial registration of a class of securities) must publicly file its registration statement, the initial nonpublic draft registration statement and all draft amendments thereto at least 15 days before it conducts its road show or, if there is no road show, at least 15 days before the effective date.
  • Registration statements related to follow-on offerings within 12-months of an initial Securities Act registration statement must be publicly filed no later than 48 hours prior to any requested effective date and time.
  • The staff will still process a draft registration statement that is substantially complete except for financial information the issuer reasonably believes will not be required at the time the registration statement is publicly filed.
  • Draft registration statements need not be signed by the registrant or by any of its officers or directors, nor is it required to include the consent of auditors and other experts, since it is not filed with the Commission.
  • The Securities Act registration filing fee for a draft registration statement is due when the registration statement is first filed publicly on EDGAR.
  • The staff will publicly release its comment letters and issuer responses to staff comment letters on EDGAR no earlier than 20 business days following the effective date of a registration statement.
  • Non-EGCs may not use test-the-waters communications with QIBs and institutional accredited investors pursuant to Securities Act Section 5(d).

The Divisions full FAQs are available here.