Going Public & JOBS Act Confidential Filing One:
Going Public & JOBS Act now allows for the filing by an emerging growth company prior to its initial public offering date of draft registration statements for confidential nonpublic review by the SEC staff prior to public filing, provided that the initial confidential submission and all amendments thereto shall be publicly filed with the Commission not later than 21 days before the date on which the issuer conducts a road show. The confidential submission process is only available for 1933 Act initial public offering registration statements and is not available for Form 10 or Form 20-F Exchange Act registration statements.
Going Public & JOBS Act Confidential Filing Two:
If a foreign private issuer wants to Go Public under the JOBS Act and comes within the definition of an emerging growth company, it can use the confidential submission procedure to the same extent as a domestic company. A foreign private issuer that is not an emerging growth company may qualify to submit a draft registration statement on a non-public basis for staff review, if it meets the requirements for non-public submissions as set forth in the Division of Corporation Finance’s policy on Non-Public Submissions from Foreign Private Issuers.
Going Public & JOBS Act Confidential Filing Three:
If the emerging growth company does not conduct a traditional road show and does not engage in activities that would come within the definition of road show, other than test-the-waters communications that comply with Section 5(d), then its registration statement and confidential submissions should be filed publicly on EDGAR no later than 21 days before the anticipated date of effectiveness of the registration statement if the emerging growth company does not conduct a traditional road show.
However, an emerging growth company has to publicly file the initial confidential submission and all amendments thereto not later than 21 days before it conducts its road show. The SEC’s rules and EDGAR do not currently provide for the filing of registration statements in draft form. As a result, for now, these materials should be filed as exhibits to the first registration statement filed on EDGAR, with each confidential submission filed as a separate Exhibit 99. As is the case for all registration statements filed under the Securities Act, the first filed registration statement should be complete, including signatures, signed audit reports, consents, exhibits and filing fees.
Going Public & JOBS Act Confidential Filing Four:
The confidential submission of the draft registration statement does not constitute a filing for purposes of the prohibition in federal securities laws against making offers of a security in advance of filing a registration statement. However, with respect to these communications, if an emerging growth company submits its draft registration statement on a confidential basis, the company may not subsequently make a public communication about its offering in reliance on the Securities Act Rule 134 safe harbor.
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